In United States criminal procedure, the trial penalty is the difference between the smaller sentence offered to a defendant in a plea bargain prior to a criminal trial and the larger sentence the defendant could receive if they elect to go to trial.[1][2] It sits at the center of a legal debate over whether trial penalties abridge defendants' Sixth Amendment right to trial.
Background
In a plea bargain, a criminal defendant waives their right to trial and agrees to plead guilty to a lesser charge than would be brought against them at trial or agrees to plead guilty to the original charge in exchange for a sentence which is less than the maximum possible.[3][4] Plea bargaining is pervasive in the United States: most criminal defendants accept a plea deal rather than go to trial,[5] and at the federal level only 2% of defendants elect to go to trial.[6] The constitutionality of plea bargaining has been repeatedly affirmed by the United States Supreme Court, as in Brady v. United States, provided that the defendant enter into the plea deal voluntarily.[7]
Definition
The "trial penalty" is the "discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial".[8] Many plea bargains require that the defendant waive certain constitutional rights, such as the right to challenge unlawfully procured evidence and the right to appeal; this is also sometimes considered part of the "trial penalty".[8][9]
Criticism
Critics argue that the trial penalty has the effect of depriving defendants' of their Sixth Amendment right to "a speedy and public trial".[10] The lawyer Alan Dershowitz argues that trial penalties have rendered most plea bargains unconstitutional because they amount to a punishment for exercising the right to trial, and any right is abridged "when you're punished for exercising it".[11] Indeed, a statistical analysis of the federal cases shows that defendants who exercise their right to trial are penalized with sentences 64% longer than they would have received had they accepted a plea deal.[12] He similarly argues that this makes trial by jury "less of a right and more of a trap for fools". Human Rights Watch also stresses the discrepancy between plea sentences and trial sentences in their report on trial penalties in drug cases: "the trial penalty’s effectiveness at securing plea agreements is purchased at the cost of disproportionate and unjust sentences for those who exercise their right to trial".[2]
The National Association of Criminal Defense Lawyers (NACDL) argues that trial penalties are "now so severe and pervasive that it has virtually eliminated the constitutional right to a trial".[1] It contends that trial penalties impose such harsh penalties on electing to go to trial that they amount to coercing defendants to plead guilty—which renders such plea deals unconstitutional.[8] For instance, they argue that the power of a prosecutor to reduce a multi-decade prison sentence that could be faced at trial to several years in a plea bargain renders "any choice the defendant had in the matter...all but eliminated".[8] They further point out that "the pressures defendants face in the plea bargaining process are so strong even innocent people can be convinced to plead guilty to crimes they did not commit", which they argue casts doubt "on the assumption that defendants who plead guilty do so voluntarily".[8]
The NACDL also argues that trial penalties have resulted in the system of trial by jury laid out in the United States Constitution to be effectively replaced by a system of plea bargains.
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