January 28, 2020

January 27, 2020

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New Report Presents Crucial Findings on the "Trial Penalty" Imposed Against Defendants Who Take Cases to Verdict—and What to Do About It

The National Association of Criminal Defense Lawyers issued a groundbreaking report this week, addressing at length the effects of what is referred to as the "trial penalty"—significantly harsher sentences routinely imposed on defendants who elect to exercise their constitutional right to a trial by a jury of their peers.

The report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, analyzes the history of the penalty and the reasons for it, and proposes solutions to mitigate it. With a forward by former federal Judge John Gleeson of the Eastern District of New York, the report, issued July 10, notes that the trial penalty is not the result of any one particular cause, but instead results from decades of decline in the percentage of cases that go to a trial; in fact, trials occur in less than 3 percent of state and federal cases.

As the U.S. Supreme Court stated in Lafler v. Cooper, our criminal justice system today "is for the most part a system of pleas, not a system of trials." As a result, defense lawyers spend most of their time trying to negotiate the best plea bargain for their clients and then advocate before the sentencing court, which is otherwise generally silent in the process. Moreover, studies have revealed the tragic fact that the innocent will, at times, plead guilty in order to avoid the potential for a much longer sentence if they are convicted after a trial.

The report recommends numerous ways to mitigate the trial penalty, including eliminating prosecutors' ability to threaten charging offenses carrying mandatory minimum sentences if a plea bargain is not accepted; requiring full discovery prior to the entry of a guilty plea; and assigning a member of the judiciary to participate in the plea bargaining process.

Copyright © by Ballard Spahr LLP


About this Author

Marjoree Peerce Litigator  Criminal Defense Ballard Law FIrm

Marjorie J. Peerce is a litigator, with a practice focus on white collar criminal defense, regulatory matters, and complex civil litigation. In her more than 30 years of practice, she has handled matters across the criminal and regulatory spectrum. She is Co-Managing Partner of the firm's New York Office.

Ms. Peerce appears in New York state and federal courts, as well as in federal districts around the country. She has handled criminal and regulatory investigations concerning, for example, violations of the Internal Revenue Code, securities...