Trial Penalty

As the criminal justice system exploded in size and scope over the last four decades, the effects of coercive plea bargaining—and its pernicious partner, the trial penalty—have led to alarming results. Instead of merely conferring a reasonable benefit on people who accept responsibility and plead guilty, the current system frequently applies vastly inflated sentences to people who assert their constitutional presumption of innocence and force the Government to meet its burden at trial.

The National Association of Criminal Defense Lawyers (NACDL) defines the trial penalty as “thesubstantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.”

Along with the right to trial, individuals are routinely induced to waive the right to obtain discovery; time to conduct a thorough investigation; the right to challenge unlawfully obtained evidence; the right to testify and present defense witnesses; and even the right to appeal. We can think of the trial penalty as the corollary to police deception, in the sense that important rights are compromised by what is tantamount to trickery.