by David M. Reutter

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds,” President John Adams once declared.

That warning seems all but lost in a criminal justice system that administers conveyer-belt justice via guilty pleas. Prosecutors regularly incentivize plea bargains and threaten the prospect of a “trial penalty” of up to ten times as severe as their plea offer. The fear of suffering prosecutorial vindictiveness after exercising the right to trial has resulted in approximately 97% of criminal cases being resolved through plea bargains.

The argument from supporters of this method of administering justice is that if there were no penalty for taking a case to trial, the court system would be overwhelmed and require more financial support from taxpayers. This argument has a basis in fact, but the essential question is: what is the cost of relinquishing the right to trial?

The Founding Fathers experienced tyranny in the form of an all-powerful government. In crafting the Constitution, they empowered the citizenry to check the power of their budding republic. They firmly believed in a small government that was beholden to the people. The trial penalty has altered the balance of power and tilted it in favor of government.

“Society pays a price when, inevitably, guilty pleas operate to foreclose litigation that would have exposed unlawful government actions or practices and police misconduct,” warned Norman L. Reimer, Executive Director, National Association of Criminal Defense Lawyers (“NACDL”), and Martin Antonio Sabelli, Second Vice President of the NACDL, in an article that appeared in the Federal Sentencing Reporter.

The trial penalty stems from the acceptance of guilty pleas in modern times. Not long ago, the Supreme Court of the United States (“SCOTUS”) deemed guilty pleas that were secured through promises of leniency or threats of higher sentences to be unconstitutional.

The most notable of the Court’s decisions was United States v. Jackson, 390 U.S. 570 (1968), which held the federal kidnapping statute imposed an “impermissible burden upon the exercise of a constitutional right” because it called for the death penalty only for defendants convicted by a jury. The Court said “the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.” While SCOTUS did not preclude defendants from acting voluntarily and entering a guilty plea, it said the statute’s tendency to discourage defendants from insisting on their innocence was enough to overturn it.

By 1968, SCOTUS had rejected “every guilty plea induced by threats of punishment or promises of leniency that had arrived on its docket.” It did an about-face in 1970 with its rulings in Brady v. United States, 397 U.S. 742 (1970), and Parker v. North Carolina, 397 U.S. 790 (1970). Those cases ruled that it was not unconstitutional for prosecutors to offer inducements to obtain a guilty plea—even if the inducements were the threat of longer sentences after trial. Just a few years later, SCOTUS said in Chaffin v. Stynchcombe, 412 U.S. 17 (1973), that while such threats may discourage defendants from going to trial, “the imposition of these difficult choices [is] an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.”

Scholars surmise the rationale for this abrupt change in constitutional law was that plea bargaining had become an efficient criminal justice system. Consider this: Why would a defendant enter a guilty plea and waive the Sixth Amendment right to trial if the sentence imposed would be the same if convicted by the jury?

Pushing a criminal case through the gamut of discovery, pretrial motions and hearings, and the costs for jurors, the judge, the prosecutor, the defense attorney, bailiffs, court clerks, and court reporters can be burdensome upon the scarce resources of the judiciary. The trial penalty discourages defendants from taxing the system by accepting a plea deal instead of going to trial.Just how severe is the trial penalty when imposed? Attorney Alan M. Dershowitz says that in his own practice, he has “seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than ten times as severe as prosecutors had offered them.” He outlined several cases to support his experience with the trial penalty.

In the first case, “[a] doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial,” said Dershowitz. “He rejected the plea offer because he believed he was innocent and had expert testimony to back him up. In another case, two businessmen accused of financial fraud were offered sentences of seven years and were sentenced to 80 years after trial.”

“The worst case involved two young men who robbed a store in Alabama, then picked up one robber’s uncle, and drove away. A police chase and shootout ensued in which a state trooper was shot and killed,” Dershowitz continued. “The two young men copped a plea and were sentenced to prison. The uncle—who was unarmed and mentally disabled—went to trial. The jury convicted him of conspiracy to commit felony murder and sentenced him to death.” The man died on death row of old age after several appeals.

A Poor Gamble

One attorney’s experience, however, does not equate to a trend. David S. Abrams, a professor at the University of Pennsylvania’s Carey Law School argues the “empirical evidence shows little support for the trial penalty, and in fact there appears to be a plea penalty.” He came to that conclusion after reviewing 42,552 cases from Chicago-area courts. Abrams suggests that a major reason why defendants plead guilty against their best interests may be that defense attorneys disloyally dissuade their clients from exercising their rights, so the attorney can avoid a burdensome trial.

Abrams said that an “ideal study would examine a large sample of otherwise identical cases where defendants are randomly assigned to either take a plea or go to trial.” However, such a study, he said, would be impractical and unethical. While no such study has been conducted, two recent studies examined tens of hundreds of thousands of cases to determine the disparity between plea bargains and sentences imposed after trial.

One of those studies was a peer review and critique of Abrams’ study. Andrew Chongseh Kim, an associate professor at the Concordia University School of Law, also performed an empirical analysis of the federal trial penalty that was published in the Mississippi Law Journal. Kim found that Abrams’ study was skewed because he excluded defendants who received a zero-sentence with a plea bargain for probation. This raised the average sentence obtained via negotiations. Converting Abrams’ data to its proper perspective, “reveals that defendants who go to trial receive longer sentences than those who plead guilty,” Kim concluded.

Turning to the analysis of the federal trial penalty, Kim noted that prior studies indicate the trial penalty ranges from three to fifteen percent of the average plea sentence. In light of the 12% federal acquittal rate, “these findings might suggest that defendants who go to trial are not ‘penalized’ at all,” Kim wrote.

Those studies err in several respects, according to Kim. They reach conclusions based upon the recommended sentence rather than the final sentence, and some exclude defendants who receive probation sentences. Finally, most fail to account for the functional equivalent of a statutory trial penalty.

The Federal Sentencing Guidelines (“Guidelines”) provide for a two or three level reduction to the recommended sentence if the defendant “accepts responsibility” by pleading guilty. Accepting responsibility does not require a showing of remorse; it only requires the act of pleading guilty and admitting to the relevant criminal conduct. Attorneys routinely rely on this plea incentive to “produce a twenty-five to thirty-five percent reduction in final sentences for defendants who plead guilty,” Kim found.

Kim used data compiled from 221,928 criminal conviction cases for the United States Sentencing Commission (“USSC”) for 2006 to 2008. Of them, 207,352 had sufficiently complete data to perform the study. Kim found that “defendants who go to trial have only a twelve percent chance of being acquitted, but can expect a sixty-four percent longer sentence if convicted, a poor gamble by any metric.”

Larceny and theft charges had the highest penalty at 137%. Administration of Justice offenses (109%), White Collar crimes (106%), Money Laundering (92%), and Immigration Offenses (78%) rounded out the top five offenses with the largest trial penalty. Firearm offenses (29%), drug trafficking (30%), Violent Crimes (37%), Sexual Offenses (37%), Pornography and Prostitution (47%), Homicide (56%), and Racketeering (55%) carried the lowest, but still substantial, risk of a longer sentence if a plea bargain was rejected.

No one should be forced to gamble with decades of their freedom because they chose to put the government to its burden. “Our Constitution claims to protect the guilty as well [as the innocent], affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt,” says former U.S. District Judge John Gleeson. “A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.”

NACDL issued a report in 2018 that detailed the depth of the trial penalty problem. That report examined the degree of decrease for federal defendants who provided substantial assistance. Its review of 8,084 cases from the USSC for 2015 found the median decrease from the Guidelines minimum was 50.4%, with the median sentence being 31 months. The lowest decrease from the Guidelines was 30.7% and the highest 100%.

When it looked at the overall picture of the trial penalty, NACDL found the average trial sentence in 2015 was 10.8 years. Those who accepted a plea bargain, by contrast, received an average sentence of 3.3 years.

NACDL attributed the Guidelines as a cause for the trial penalty. “Prosecutors have maintained an inordinate amount of discretion over a defendant’s ultimate sentence, in part, because the Guidelines are skewed in their favor,” the NACDL report said. In addition to having the power to agree not to bring certain charges or dismiss others, prosecutors “may agree to recommend, or not to oppose, a particular sentence or sentencing range … or argue for or against the application of sentencing factors.”

Judges are routinely complicit in administering conveyor-belt justice. “Most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are,” said Senior U.S. District Judge Jed Rakoff, in a 2014 article he authored that appeared in The New York Review of Books.

Tools of Coercion

Defendants face a tilted scale of justice upon their entry into the courthouse. In a normal negotiation situation, the parties enter on equal footing. That is not the case when a criminal defendant enters negotiations with the prosecution. The scale is tilted to force a defendant to capitulate and waive the fundamental right to trial in order to avoid a trial penalty that regularly equals decades above the pre-trial settlement offer.

Prosecutorial pressure is exerted in many ways to extract a plea before the defense has the opportunity to evaluate the merits of the case. Prosecutors have a host of coercion tools in their toolbox. One of the most powerful tools is the discretion in lodging charges.

“[P]rosecutors may threaten to charge under the statute carrying the highest maximum penalty in order to obtain bargaining leverage. They may also intimidate defendants by threatening charges that carry mandatory minimum penalties,” NACDL said in its report. “There is no legal basis for a defendant to challenge the sufficiency of a grand jury indictment in federal court, and a grand jury may indict on mere hearsay without ever hearing evidence favorable to the accused. So prosecutors retain the upper hand to threaten more serious charges, even if they are supported by evidence that would be inadmissible at trial, can be defeated by countervailing evidence, or are wholly unsupported by the law. Because so few defendants are willing to risk going to trial, prosecutors’ charging decisions are largely free from judicial scrutiny.”

The NACDL report highlighted the criminal case against FedEx and UPS to illustrate this point. Both companies were indicted in 2013 with conspiring to distribute controlled substances by delivering packages containing pharmaceuticals purchased from Internet pharmacies. Neither company knew what was actually in the packages.

UPS quickly accepted a non-prosecution agreement and agreed to pay a fine of around $40 million and to institute corporate governance reforms. FedEx decided to test the government’s novel theory at trial. In response, the government sought $1.6 billion in fines or forty times the agreement with UPS. When the federal judge expressed skepticism of the case, the government dismissed the case. The judge was involved in the matter only because FedEx insisted on exercising its right to trial.

Prosecutors also regularly agree to charge and fact bargaining. Charge bargaining entails prosecutors agreeing to seek charges of a lower degree or to change the charge altogether. They also will agree to limit the relevant facts to lower degree charges or to ensure a sentencing factor will not apply. “Such manipulation is indeed troubling,” NACDL said. “But it is all too common.”

Another tool used by prosecutors is rights bargaining. “For instance, in many districts, it is common practice to require defendants to waive the right to appeal their sentence or important legal rulings including, for example, the legality of the criminal statutes or police conduct, including the legality of the stop, search, or seizure, or the acquisition of other forms of evidence,” the NACDL report explained. “Increasingly, prosecutors are requiring defendants to waive their right to receive exculpatory evidence in the possession of the government.”

Judges normally go along with these waivers. In a rare example of a court scrutinizing the terms of a plea agreement, a federal district court in California on May 11, 2020, rejected a plea agreement that required the defendant to waive his right to seek compassionate release. The court held that waiver violated the First Step Act of 2019. Very few defendants will refuse to accede to terms that require waiving their rights “because the only other choice is to take the case to trial and face a much higher sentence,” said NACDL. “So prosecutors can make plea offers on an all-or-nothing basis, confident that defendants will accept any terms to avoid an excessive sentence and that judges will rubberstamp the deal because they do not want to deny a defendant the benefit of a bargained-for lower sentence.”

“The capacity of prosecutors to construct ever more onerous conditions for a guilty plea cannot be overstated,” noted NACDL’s report. “Indeed, federal prosecutors now seek even the waiver of rights under the Freedom of Information Act.”

Real estate developer Preston Byrd’s experience with the “justice system” is a prime example of the onerous tactics that prosecutors with win-at-all-costs attitudes will engage in when defendants refuse to plead guilty. In an interview with Business Quick magazine, Byrd said his experience with the federal justice system taught him that “we don’t live in a society that presumes us innocent until proven guilty, but we are convicted in the eyes of the public long before a trial ever takes place.”

He came under prosecutorial scrutiny after he was sued because a 120-unit development project in Tennessee his company was coordinating experienced cost overruns of about $1 million. The bank that financed the project wanted Byrd’s company to return the $1 million it had been paid on its $1.4 million contract. Once the bank and general contractor began losing in court, “they reached out to their buddies in the prosecutor’s office.”

After Byrd, who is Black, was indicted, prosecutors issued press releases and involved the news media. Byrd’s reputation was tarnished. He believed the prosecution and case publicity was racially motivated. Preston said one of the attorneys in the civil litigation “stated to one of my attorneys that I had no business in this line of work and that surely given my success, I had to have been doing something illegal.”

Byrd was initially released on bond, but prosecutors had him jailed for talking to the employee, who was now a witness, about wrapping up projects he’d worked on. He spent over seven months in jail preparing for trial. During that time, he “felt very alone” and contemplated suicide because he “felt so overwhelmed.”

While in jail, prosecutors listened to hundreds of hours of phone calls between Byrd and his attorneys. As for what pushed him to proceed to trial, Byrd said, “I went to trial believing that I would win because I was naive enough to believe that this justice system would be fair and play by the rules. I was wrong!”

Byrd continued, “The prosecutors lied. The prosecutor knew that the man that worked for me committed this crime. He wasn’t interested in justice, he was only interested in pursuing me.”

Stories such as Byrd’s and other defendants who endure forms of prosecutorial misconduct become lore in county jails. As the story gets passed down, it intimidates other defendants, and they succumb to the pressure exerted by prosecutors to reduce their risk of a life changing outcome.

Leveraging Prosecutorial Bargaining Power

By their very position as an officer of the court, prosecutors are charged with acting as an arm of justice rather than just as an adversary of the defense. Many prosecutors lose sight of this incredibly important principle, and an attitude of winning at any cost pervades most prosecutorial offices. “Unfortunately, many prosecutors will not hesitate to use the full extent of their bargaining power to secure guilty pleas.” The NACDL report elaborates, “While most prosecutors will not acknowledge that defendants should be punished for going to trial, most adopt the attitude that leniency is only for those defendants who admit their guilt before trial which, of course, amounts to the same thing.”

“If a prosecutor finds himself in the difficult position of having to support a much harsher sentence than he was originally willing to accept in exchange for a guilty plea, the most common refrain is that he is merely applying the law.”

The coercive tactics to force a plea start from the beginning. It hits the poor especially hard, and this is where systematic racism thrives. The first interaction a defendant has with the court system involves setting bond. Overcharging a crime can make a defendant appear to be a greater public safety risk than his alleged conduct merits. Thus, the judge will set a higher bond amount.

For a wealthy defendant, this is rarely an issue unless they are considered a flight risk or the charges are so serious that the court is disinclined to allow the defendant release. When a case involves an indigent defendant or someone who is barely scraping by to support themselves or their family, the prospect of posting a cash bond or putting up security through a bondsman can be a burden they cannot overcome or that puts their family in a volatile situation.

These impoverished defendants usually have no choice but to sit in jail until the matter is resolved. “The negative impacts of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” said Cherise Fanno Burden, CEO of the Pretrial Justice Institute.

The main impact is usually the loss of employment. Prosecutors know this, so they begin by overcharging defendants and then argue for the highest possible bond. Pushing a plea bargain at this stage for lower level crimes is not unusual.

California Supreme Court Justice Tani Cantil-Sakauye agreed, “I’ve seen it. A time-served offer on a custody defendant on a low-level charge, all they think about is, ‘Do I get out today? Can I get out today?” What happens when a defendant waffles in accepting a plea bargain and issues their own threats to exercise their right to trial? Most prosecutors open their tool box and start threatening to bring more charges, or they threaten to push for a Guideline sentence and seek sentencing enhancements to jack up the sentence after trial.

“The consequences for those who insist on their right to trial are even more severe because, many prosecutors believe that, once they made a threat, they cannot hesitate to follow through—no matter how outrageous the threat is,” NACDL’s 2018 report observed. “Otherwise, their threats will not be taken seriously in the future, and they will undermine their bargaining leverage.”

The case against David Anthony Taylor illustrates those consequences of exercising the right to trial. Taylor, a gang member in Southwest Virginia, was charged in 2012 in a string of ten robberies. The gang’s leader, George Fitzgerald, conducted surveillance on drug dealers who he thought would not report the robberies to police. He decided who would participate in each home invasion and divided up the proceeds, taking a cut from each robbery.

Taylor was a low-level member whose particular role was to act as a human shield while other gang members entered the home. When the gang was indicted, everyone except Taylor accepted a plea bargain. Fitzgerald agreed to cooperate with the prosecution and received a sentence of 22 years. The other low-level gang members received sentences that ranged from seven to 14 years.

A plea deal was offered to Taylor that involved an agreement to seek indictment for only one count of robbery and one count of brandishing a gun. The prosecutor threatened to file additional charges if Taylor rejected the deal. Taylor elected to exercise his Sixth Amendment right to trial. The prosecutor followed through on his threat and filed a superseding indictment by adding two counts, including another gun charge that stacked a 25-year mandatory onto Taylor’s potential sentence.

The first trial resulted in a hung jury, but the second jury convicted Taylor. At sentencing, the prosecutor sought a 42-year sentence, which was an upward variance from the Guidelines. Taylor was ultimately sentenced to 28 years in prison, which exceeded even the ringleader’s sentence.

It seems obvious that Taylor was guilty of being involved in a crime. That is reason enough for some to say he deserved the increased penalty for failing to accept responsibility and putting the court system through the expense of a trial. Yet, should the trial penalty be applied to a defendant who has exercised their right to trial because they believed they had no culpability in a criminal scheme?

After accepting a job at a Florida law firm in the mid-2000s, Annette Trujillo was tasked with conducting real estate closings. “She soon became caught up in a mortgage fraud scheme perpetrated by a group of mortgage brokers, realtors, and several straw buyers who used fraudulent loan applications to extract more money from banks than they would have otherwise been prepared to lend.” In further outlining the case, NACDL’s report explained, “To cover up the scheme, the co-conspirators included false information on the settlement documents regarding how the proceeds of the loans would be disbursed. As the closing agent, Trujillo signed off on the settlement documents.”

An indictment charged Trujillo with bank fraud and wire fraud in connection with two properties in which she was the closing agent. The government also charged her with conspiring with three other co-defendants to commit the fraud. Each of the co-defendants accepted a guilty plea and received reductions for accepting responsibility.

Trujillo maintained she did not intend to defraud anyone and did not receive any financial gain from the fraud. Believing she was innocent, Trujillo proceeded to trial. She was acquitted on the conspiracy charge but was found guilty on the bank and wire fraud charges. As a result, she was sentenced to five years and five months, “more than double the sentences of the mortgage brokers and straw buyers, who had benefitted from the fraud.” The judge expressed an opinion that Trujillo deserved a harsher punishment for not accepting responsibility for her crimes.

The Way it Works

When a prosecutor seeks a penalty at trial that is more severe than what was offered in a plea bargain, it would seemingly constitute a prima facie case of prosecutorial vindictiveness. After all, if the nature of a crime calls for five years in prison if a guilty plea is entered, it surely cannot support an 835-year sentence after trial.

The case of Shalom Weiss demonstrates clearly that the trial penalty is not merely some hypothetical conjuration by persons who lose at trial. Weiss was convicted of a non-violent, white collar crime. His equally culpable co-defendants accepted plea deals that netted sentences ranging from six to 25 years. Weiss, however, rejected a five-year plea offer and went to trial. After his conviction, he received the longest sentence ever imposed in U.S. history for a white-collar crime: 845 years, later reduced to 835, but still equating to a trial penalty of about 167%. He paid in full a $125 million restitution order and served over 18 years before getting a commutation in January 2021.

How SCOTUS allows such an astronomical trial penalty to pass constitutional muster is baffling. We must not forget that the Court once held that plea bargaining for guilty pleas was unconstitutional because it promised leniency. Yet, prosecutors are now allowed to overcharge defendants and use Guidelines enhancements and mandatory minimums to coerce defendants into accepting the offered deal.

In 1978, the Court was confronted with a New Jersey law that requires the imposition of a life sentence for defendants convicted of first-degree murder after trial. The law does not allow entry of guilty pleas, but it does not prohibit entry of a nolo contendere or plea of non vult, both of which are substantially the same as a guilty plea.

Under that law, a prosecutor can approach a defendant and present them with a choice of either making a blind plea with a mere chance of leniency or receiving a mandatory life sentence for a trial conviction. In a six to three decision, SCOTUS approved of that choice. Corbitt v. New Jersey, 439 U.S. 212 (1978). The Corbitt Court said that “not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive a right, is invalid.”

The Corbitt decision was denounced in a 1979 Indiana Law Journal article because of the “power” it gave to prosecutors. “The Court has authorized the use of trial penalties to erode the trial system of criminal justice without any showing of need, without requiring a rational use of trial penalties and without any protection of the interests of the defendant,” wrote Charles H. Clarke of the Detroit College of Law. “Thus, the fundamental right to trial in a criminal case has been dispatched without even so much ceremony or explanation which usually attends the obliteration of nonfundamental interests, which may permissibly be destroyed when there is a rational basis for doing so.”

Since the Corbitt decision, the trial rate has dropped from more than 20% of all criminal cases 30 years ago to its current rate of approximately 3%. With courts allowing prosecutors to use strong arm tactics with excessive trial penalties, fewer defendants are willing to “roll the dice” by demanding a trial. When a defendant attempts to vindicate themselves via trial because they believe they have no culpability, the appellate courts have shown little sympathy for defendants after a trial penalty is imposed at sentencing.

Gil Lopez’s case demonstrates this point. He was the Chief Accounting Officer of Stanford Financial Group. “For decades, Allen Stanford had been appropriating credit deposit investments in Stanford International Bank (SIB) for his own personal benefit, using funds to support the rest of his companies and to bankroll his lavish lifestyle,” NACDL wrote in outlining the case. Stanford was the mastermind of the scheme, but Stanford’s Chief Financial Officer, James Davis “admitted that he orchestrated the cover-up efforts by falsifying revenue disclosures in SIB’s annual reports and bribing government regulators and the company’s external auditor.”

Lopez, who the government later conceded was completely unaware that Davis had paid bribes to cover up the scheme, was indicted along with Stanford and Davis. Davis quickly agreed to provide substantial assistance to testify against Stanford and Lopez. That move left Lopez without valuable information when he offered to provide substantial assistance, so the prosecutor refused to offer him a formal plea bargain. Davis was sentenced to five years in prison. Based largely on Davis’ testimony, the jury convicted Lopez. The court sentenced Lopez, who was 70 when sentenced, to a virtual life sentence of 20 years in prison.

Lopez raised this disparity in the U.S. Court of Appeals for the Fifth Circuit.

Plea bargaining “often does lead to more lenient sentences for more culpable defendants who choose to cooperate,” the Court wrote. “This is simply the way that cases against multiple co-defendants are often prosecuted.”

“The trial penalty is much more than an unjust, unwarranted sentence enhancement for those who dare to exercise their constitutional right to trial,” said Reimer, NACDL’s Executive Director, in the documentary film, The Vanishing Trial, released last year. Reimer continued, “It is a bludgeon wielded by unrestrained prosecutors to extract guilty pleas and all manner of waivers to foreclose public disclosure of law enforcement misconduct. In an era in which we desperately need transparency, the trial penalty operates as a shroud of secrecy that perpetuates racial and ethnic disparity.”

The Cost

While plea bargaining is a cheaper model financially than trials, it carries many costs that degrade the strength of the republic that the U.S. Constitution created. As John Adams pointed out, jury trials are an integral part of the bulwark against the arbitrary and capricious use of government power. The theory is that defendants are cloaked with a presumption of innocence, and the prosecutor has the burden of proof. In current practice, prosecutors are allowed via plea bargains to essentially make administrative adjudications of criminal cases by deciding what the charges are and what sentence is to be imposed, while never having to carry its burden of proof.

“[A]s trials and hearings decline, so too does government accountability,” cautioned NACDL’s report. “Government mistakes and misconduct are rarely uncovered, or are simply resolved in a more favorable plea bargain. Moreover, the ease of conviction can encourage sloppiness, and a diminution of the government’s obligation to fairness.”

The FedEx and UPS episode showcase how the government can create novel theories with oppressive penalties to coerce a defendant into accepting a plea bargain. What is often forgotten when the pressure is on is that the prosecution’s claims are merely “allegations.” Yet, when the prospect of spending most of or all of one’s life in prison is placed on the table (or even a short sentence that could easily cost a job or housing), few defendants are willing to reject the easy way out even when factually innocent.

To most people who have never been faced with the agonizing decision themselves, it is unfathomable that people plead guilty to a crime for which they are innocent. Troublingly, of the 354 persons exonerated by DNA evidence, 11% pleaded guilty to crimes they did not commit. The National Registry of Exonerations has identified 359 exonerees who pleaded guilty. CLN’s sister publication, Prison Legal News, has reported on several of these cases, including a few that involved defendants who were mentally ill and in which prosecutors hid exonerating evidence.

Cases where innocent defendants plead guilty often result from defense counsel spending more time negotiating a plea than investigating the actual case. This is especially true in public defender offices, which are underfunded and understaffed and have caseloads that prevent them from providing meaningful representation.

“As a result of the trial penalty, not only are defense counsel trying fewer cases, but they are frequently forced to settle cases before meaningful investigation and litigation of the government’s case,” NACDL observes in the report.

Reimer and Sabelli of NACDL opened the Federal Sentencing Reporter’s April/June 2019 double-issue focused on the trial penalty with their editorial, titled “The Tyranny of the Trial Penalty,” stating, “From the standpoint of the defense lawyer, the prospect of seeing an innocent client convicted is the most dreaded aspect of criminal defense practice. But the duty to advise even an innocent client that it is in their best interests to give up solely because the price of asserting fundamental rights may be the destruction of their livelihood and their family is the most agonizing aspect of practice.”

Plea bargains “sideline[ ] judges from their traditional supervisory role,” wrote the NACDL report’s authors. “Rather than scrutinizing the sufficiency and legality of the government’s case, they are reduced to rubber-stamping plea bargains.”

With the decline in trials and the litigation associated with them, the advocacy skills of counsel on both sides of the adversarial system atrophy. Some lawyers and judges have not participated in a trial in years. For instance, only 50 trials were held in 2015 at the federal courthouse in Manhattan.

“The sheer lack of trials itself is contributing to injustice. Prosecutors who are seldom required to try their cases pursue increasingly weak and questionable cases, secure in the knowledge that they most likely will never see their witnesses exposed to the rigors of cross-examination,” wrote Reimer and Sabelli. “Similarly, defense lawyers who rarely try cases will lack the skill set to accurately assess the strength of the case against their clients.”

The vanishing trial has huge impact on the administration of justice. “The entire system loses an edge and … the quality of justice in our courthouses has suffered as a result,” said John Gleeson, a former U.S. District Court Judge.

The trial penalty has a direct correlation to the U.S. having the highest per capita rate of incarceration. As NACDL describes, “The capacity of the government to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration. Wreaking devastation in lives and communities, and selectively concentrated among the poor and people of color, the nation’s mass incarceration has rightly been described as the great unappreciated civil rights issue of our time.”

The Report continues, “the decline in jury trials deprives society of an important community check on excesses of the criminal justice system.”Juries not only determine whether the prosecutors have met their high burden. They also “apply their own sense of fair play—frequently convicting of lesser-included offenses or even acquitting entirely where the prosecution is perceived as over-reaching.”

“As the U.S. criminal justice system churns some 11 million people through its courtroom doors every year, trial by jury actively engage[s] the public in this critical process of democracy,” said NACDL.

Judges also hold tremendous power in that process. They have the power to grant judgement notwithstanding the verdict and grant a defendant an acquittal when they find the evidence does not support a conviction. They also grant acquittals more often. In 2018, 12% of federal defendants elected to be tried before the judge. Around 4 in 10 defendants (38%) who faced a bench trial were acquitted. That compared to the 14% who were acquitted by a jury.

Ending the Tyranny

For decades now, there has been a consensus that the trial penalty exists. “Critics of the decline of the jury trial and the institutional coercion that is the trial penalty in action span the ideological perspective. This is not the system of justice that the architects of this democracy envisioned, nor is it the system people deserve, especially as the nation has evolved,” wrote Reimer and Sabelli, “But it has come far enough that it is long past time to tolerate a system that extracts years of a person’s freedom as a price to access fundamental rights.”

Hundreds of thousands of cases on the state and federal level can be detailed to exhibit the harm defendants incur for exercising their constitutional right to a speedy trial. The answer to creating a solution that allows for defendants to exercise that right without prosecutorial vindication while meeting the government’s legitimate interest in minimizing the public costs of justice administration is complicated.

University of Virginia Law School Professor Darryl K. Brown suggests the imposition of a criminal trial fee. “If the trial fee makes the state fiscally indifferent to a defendant’s choice between going to trial and pleading guilty, it will eviscerate the central justifying rational for plea bargaining: that the state cannot afford to fund trials for more than a small fraction of criminal cases,” Brown wrote in a California Law Review article.

His suggestion, however, requires defendants to pay to exercise their constitutional right to trial. His essay also fails to fully address how such a pay system would work for poor defendants, who already have their right to counsel compromised due to overburdened public defenders.

Reimer and Sabelli said NACDL “is determined to promote study and seek reform on the federal level and throughout the various states to minimize the tyranny of the trial penalty.” Its 2018 report was a first step in that process, for it made numerous recommendations towards the aim of ending the trial penalty.

NACDL pointed to the Guidelines as the sword that prosecutors use to impose a trial penalty. Its report found that economic crimes present the most “flagrant examples of how the Guidelines call for the imposition of excessive sentences.” Under Section 2B1.1, known as the fraud guideline, which applies to economic crimes, the amount of loss can result in an enhancement of as much as 30 levels, which means a defendant who falls in a 0 – 6-month range can result in 15 – 20 years based upon a single factor. This factor “contains 30 specific offense characteristics that call additional enhancements” to the total offense level, and many of them overlap.

The USSC made reforms in 2015 that the NACDL called tepid. Amendments to Section 2B1.1 changed the focus from quantity of loss to the impact upon victims. This, however, still favors prosecutors by allowing hearsay evidence to prove “substantial financial hardship.”

As for recommendations for changes to the Guidelines, the NACDL said they should be amended to prohibit the use of evidence of acquitted conduct as relevant conduct, authorize courts to award acceptance of responsibility without motion from the government, even after trial, if the interests of justice dictate, and clarify that the obstruction of justice enhancement should not be used solely for the act of an accused testifying in his or her defense.

It also said mandatory minimum sentence statutes should be repealed or subject to a judicial “safety valve” where the court determines the circumstances of the defendant justify a sentence below the mandatory minimum. Further, defendants should have access to all relevant evidence prior to entry of any guilty plea.

The litigation penalty should be removed. Plea offers should not contain the waiver of statutory or constitutional rights. “This includes an accused person’s decision to seek pre-trial release or discovery, investigate a case, or litigate statutory or constitutional motions,” NACDL said. It also believes a mandatory plea-bargaining conferences should be supervised by a judicial officer who is not presiding over the case absent an intelligent and knowing waiver from the defendant.

Courts should also be permitted to make “Second Looks” after substantial service of a sentence. Procedures should be implemented to end the trial penalty. “Concretely, post-trial sentences should not increase by more than the following: denial of acceptance of responsibility (if appropriate); obstruction of justice (if proved); and the development of facts unknown before trial.”

Finally, 18 U.S.C. § 3553(a)(6) should be amended to require courts to “consider the sentence imposed for similarly situated defendants (including, if available, a defendant who pled guilty in the same matter) and the defendant who was convicted after trial.”

Absent change, the only recourse available to defendants who have suffered a trial penalty is the arbitrary clemency process. That process was a saving grace for Daniela Gozes-Wagner. She was convicted by a jury in 2017 of conspiracy to commit healthcare fraud and conspiracy to commit money laundering. She was a mid-level manager of a company that improperly received Medicare and Medicaid funds.

Her co-defendants pocketed millions of dollars and had more culpability, but they accepted pleas for five- and six-year sentences. Gozes-Wagner was sentenced after trial to 20 years in prison and $15.2 million in restitution. On his last day in office, President Trump commuted Gozes-Wagner’s sentence. That order recognized her “sentence was significantly more severe than the sentences imposed on the other defendants, several of whom played a more central role in the fraud. Her sentence was criticized by numerous former high-ranking U.S. officials as disproportionate to her crime.”

Gozes-Wagner, unlike many defendants who have suffered a trial penalty, had the support of influential people. That leaves hundreds of thousands to suffer the loss of freedom well beyond that which was adjudged to be necessary in pre-trial stages because they lack a voice that carries to high places.

“One of the most important rights we have as Americans—the right to trial—is disappearing before our eyes,” said Kevin Ring, president of Families Against Mandatory Minimums. “We want to believe that people are punished based upon the severity of their crime and the harm they caused. That’s no longer true. Today the harshest sentences are imposed on those who simply exercise their right to trial.” 

Sources: NACDL.org, Duquesne Law Review, Mississippi Law Journal, California Law Review, Indiana Law Journal, WSJ.com, natllawreview.com, Federal Sentencing Reporter, vadogwood.com, triblive.com, townhall.com, pewresearch.org, surveymonkey.com, famm.org

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