« A helpful list of blawgs from the ABA Journal | Main | Any early predictions for Lord Conrad Black's fate? »

November 28, 2007

Assessing and reflecting on the trial penalty

Tom Kirkendall at Houston's Clear Thinkers has this great new post entitled "Hedging the trial penalty."  Here is a taste:

Although some have questioned his business ethics, no one has ever questioned that legendary Houston oilman Oscar Wyatt is good at hedging risk.  After Wyatt was sentenced yesterday to a year in prison as a result of his plea deal, my sense is that Wyatt hedged the trial penalty risk (i.e., a life sentence) in an reasonably effective manner.

Meanwhile, in another plea deal, a tenured economics professor at the University of Pennsylvania faces a likely prison sentence of 4½ to seven years for bludgeoning his wife to death. The professor says he "just lost it."  What must Jamie Olis think about that as he finishes serving what will almost certainly be a longer sentence than the professor will serve?

And what about Chalana McFarland, a first-time offender who was sentenced to 30 years in prison in connection with a mortgage fraud scheme....

Is the draconian trial penalty in the American criminal justice system really generating the type of results that a truly civil society wants?

I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty: consider, for example, the reality that Genarlow Wilson and Weldon Angelos and border agents Ignacio Ramos and Jose Compean were all offered pleas deal that would have resulted in prison sentences years or even decades shorter than what they received after trials (in which, by the way, there were acquittals on some counts).

More concretely, I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley).  My anecdotal impression is that the trial penalty in some large corporate cases is now decades long.  If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.

November 28, 2007 at 04:45 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Assessing and reflecting on the trial penalty:


Prof: for big corporations it's more than just the trial penalty that gets them to roll over, their cost-benefit analysis includes relations with the government (maybe even debarment issues), publicity, and civil/regulatory claims. the BP settlements last month, where BP threw a brace of innocent traders under the bus and handed over bundles of cash, is a recent example.

Posted by: dweedle | Nov 28, 2007 5:52:39 PM

I am a former AUSA, having served in the USAO for the Eastern District of Virginia for 18 years.

I have two comments. First, Mr. Kirkendall's pointing to the wildly varying and seemingly inconsistent sentences given in the cases he mentions might act as a reminder that giving trial judges almost unchecked discretion may not be all that good an idea. The demise of mandatory guidelines has been widely lauded by the organized defense bar, but on the assumption that sentencing courts' newfound leeway will result in lower sentences. Most of the time that assumption is correct, of course -- downward departures vastly outnumbering upward departures -- but most of the time is not all of the time, and a case such as this is a reminder that "discretion" may not always equate to "leniency." For those who welcomed the triumph of discretion over rules, it could be time to remember that one has to take the bad with the good.

My second observation is that the acceptance of responsibility adjustment, which is a virtual stand-in for the "trial penalty," has been challenged repeatedly over the years as an unconstitutional deterrent to the right to trial. To my knowledge, that challenge has never succeeded, and is even less likely to succeed now, in the era of discretionary, rather than mandatory, application of the guidelines.

Posted by: Bill Otis | Nov 28, 2007 6:27:16 PM

I believe the only solution is to bar plea bargaining. Force the government to trial in each and every case. The government will be forced to allocate its resources and will only charge serious crimes. People caught with a little pot in their pocket will not be charged because there won't be enough resources to bring all 4 million such cases per year to trial.

I believe plea bargaining is too coercive. A rational person, regardless of guilt, does not risk life in prison when they're offered 1 year or a term of probation (which might turn out to be a large sentence if revoked).

I am still bothered greatly by a case I had about 2 years ago when I knew my client was innocent, the state new he was innocent, but we agreed on 1 year deferred adjudication and he plead guilty. He was charged with aggravated assault with a deadly weapon and was looking at up to life in prison. I'll spare you all the facts of the case, but he was most certainly innocent. The victim had assaulted him the day before and had just bonded out of jail.

I stood up there as my innocent client pleaded guilty... at the end of the day he was already on 5 years probation for DWI, and the 1 year of deferred adjudication would overlap it. So other than court costs, his only risk was having the deferred adjudication revoked (where the court could sentence him to anything in the statutory range, up to life). That's a big risk, though.

Posted by: bruce | Nov 28, 2007 6:35:38 PM

Doc, I don't know about white collar sentencing, but that Russell Covey article I wrote about recently had some stats on the overall trial penalty. From Grits, see:


"How does the system induce pleas? For starters, using data from state courts, Covey calculates the existence of a baseline 292% "trial penalty," meaning the typical sentence for the same defendant might be three times as high if he or she exercises their constitutional right to trial. That's a big discount, but it's just for starters. Indeed, "Others have calculated average state trial penalties of 300%, rising in some states to as high as 500%. Abundant anecdotal evidence indicates that even higher trial penalties are not uncommon, particularly in dispositions of first-time offenders eligible for probation" Taking into account when charges are actually reduced instead of sentences lessened, Covey says sentencing discounts in some cases can approach 1,000%, meaning the plea deal gets the defendant 10% of the possible sentence at trial.

"So part of the reason people plea, according to these data, may be that they get a "really good deal" compared to what could possibly happen to them at trial, where the same prosecutor has vowed to push for a much harsher penalty. In practice, systemic checks on the magnitude of such "discounts" are "illusory," says Covey. Except in high profile cases which are handled atypically, he writes, "most prosecutors have virtually unchecked freedom to negotiate criminal charges in whatever way they believe will maximize utility." (Translation: Prosecutors typically can do whatever the hell they want to, for whatever reason their fickle hearts desire.)"

An anonymous commenter in that post summarized pithily why this trend is troublesome:

"90% discounts... I knew it, but it still floors me to hear it. Given that plea bargains are so common (over 95% of cases), that suggests that society actually thinks that the plea-bargain punishment (the 10%) is the CORRECT punishment for the given offense. That means society as a whole has placed the 1000% premium as punishment, not for the crime, BUT FOR EXERCISING YOUR RIGHTS.

"It's just stunning. Crime, as it is defined, faces limited punishment. Exercise of constitutional rights faces extraordinary punishment."

Posted by: Gritsforbreakfast | Nov 28, 2007 6:53:07 PM

How's this for a trial penalty? My client was involved in a drug offense. The AUSA offered to let him plead to a "phone count," which carries a maximum sentence of 4 years. He accepted. The problem was the offer was "wired" to the co-defendant's plea offer. In other words, both had to take the deal or neither could. The co-defendant turned the offer down. They both went to trial. My guy (who is 63, by the way) got a low-end-of-the-guideline-range sentence of 30 years without parole. The co-defendant got 25 years. I'm apppealing the "substantive reasonableness" of my client's sentence, of course, but based on the federal courts of appeals' track record of finding within-guidelines sentences to be substantively unreasonable (zero, so far), I'm not wildly optimistic.

Posted by: appellate AFPD | Nov 28, 2007 7:01:05 PM

You know what else comes into play taking a straight guilty plea vs taking a plea deal. In some plea deals the federal government forces you to give up certain rights like appealing a sentence.

Look at the difference you still want to plead guity you are not going to trial but the threaten you with enhancements and longer sentences if you dont take the deal.
Is this right?

Posted by: | Nov 29, 2007 11:31:57 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB