National Defense Bar’s Report Highlights the “Trial Penalty” Problem

 Posted on August 14, 2018 in Uncategorized

When a criminal defendant is presented with a possible plea bargain, one of the primary incentives to accept the agreement is a reduced sentence in exchange for pleading guilty. This means that refusing the agreement requires the defendant to risk a more severe sentence if he or she is found guilty at trial. The difference between the sentence offered in connection with a plea bargain and the sentence imposed after a trial is known as the “trial penalty,” and a prominent group of defense attorneys believes that trial penalties are now so severe that the right to trial guaranteed by the Sixth Amendment to the U.S. Constitution has been systematically compromised.

Most Cases Never Go to Trial

The National Association of Criminal Defense Lawyers (NACDL) recently conducted a two-year research project on the issue of trial penalties. The group released its findings earlier this month. Their report indicated that the rate of trial in federal cases has been falling for about 50 years and is now at less than 3 percent. Just 30 years ago, about one in five (20 percent) of federal defendants opted for a trial. The trial rate for state cases is around 6 percent.

The report suggests that trials have been displaced by a “system of [guilty] pleas,” which has essentially eliminated jury trials “as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.” As a result, defendants are suffering the consequences.

How a Trial Penalty Works

Consider a hypothetical situation: A man is arrested by police for trying to break into someone’s home. Within a day or two, prosecutors have obtained police reports, witness statements, and other evidence that has been gathered so far. On the third day, the suspect is able to meet with an attorney for an hour or two. A day or so later, the lawyer meets with the prosecutors, and a plea bargain is discussed. If the defendant agrees to plead guilty to a misdemeanor count of criminal trespass, he or she will receive probation and will not be required to serve jail time. If the defendant pushes for trial, however, the charge will be felony burglary, and the defendant could face up to seven years in prison.

Experts largely agree that a trial penalty is necessary—within reason. If there was no incentive for defendants to plead guilty, every suspect would demand a trial and courts would be flooded with cases. When the penalty is a defendant’s primary considerations when thinking about a plea deal, however—rather than his or her actual guilt or ability to raise reasonable doubts—it becomes a threat to the defendant’s rights, the report claims.

We Can Help

If you have been charged with a crime, an experienced Will County criminal defense attorney can help protect your rights, including your right to a fair trial. Contact the Law Offices of Jack L. Zaremba, P.C. to schedule a free consultation by calling 815-740-4025 today.