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July 10, 2018

"The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It"

The title of this post is the title of this extraordinary big new report released today by the National Association of Criminal Defense Lawyers. Here is an overview of the 84-page report from the NACDL's website:

The ‘trial penalty’ refers to the substantial 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.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Former US District Judge John Gleeson authored a thoughtful Foreword to the report, and here are excerpts that also provide a partial account of what follows:

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial.  Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes, and this report nails that step.  Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.  Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.  The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.  Finally, the report correctly finds that federal sentencing judges are complicit as well.  In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big.  The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

The report’s principles and recommendations will stimulate some much-needed discussion.  Today’s excessive trial penalties, it concludes, undermine the integrity of our criminal justice system.  Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.  The report properly raises the “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.  But there’s an even larger hypocrisy problem.  Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt.  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.

The report’s recommendations range from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.  A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.  The sentencing reform movement a generation ago disempowered judges and empowered prosecutors.  Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.  Our system is too opaque and too severe, and everyone in it — judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them.  Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises. Here’s hoping that this report will help us correct this problem before it is too late.

July 10, 2018 at 04:53 PM | Permalink


This idiotic adversarial system is from the disputation method of resolving difficult questions. It was really cool in 1275 AD. It is really stupid today. Beyond wasteful with no scientific validity to support it, and totally wasteful of money, it just stinks. It silences the most experienced and intelligent person on the court, the judge, you morons.

Posted by: David Behar | Jul 10, 2018 5:19:28 PM

It is pretty well done and covers most of the obvious and subtle flaws in our system. It is a little funny that their vignettes of unfair and tragic results are virtually all white collar (and even a corporate injustice!) when the great bulk of the victims of this system are the poor, mentally ill, and addicted.

Posted by: scott tilsen | Jul 10, 2018 5:52:02 PM

The disputation method is from Scholasticism, a Catholic church philosophy. The adversarial system violates the Establishment Clause. The format of motions, of briefs, of the IRAC, all from monks, and all are in violation of the constitution in our secular nation. Did Prof. Berman study Medieval philosophy in college? I studied it in 10th Grade World History class, and this is a problem to me.

Posted by: David Behar | Jul 10, 2018 6:22:11 PM

I totally agree with you but, I have read time and time again, over and over the injustices done through mandatory minimum sentencing and how people are forced to plea, and I'm sorry to say it seems as if no one really cares or something could be done about it. It just seems to be a lot of talk. I am 70 years old and don't know what I can do other than to e-mail my thoughts and hopefully help vote them out of office. When these actions aren't representative of our Constitution, then something needs to be done and done quickly. The politicians, lawmakers, and judges in Washington who allow this to happen should be run out on a rail. It is so disheartening and sickening to watch what has been allowed to go on in Washington. I am a fan of the presidents but, I hope he takes a harder look at Attorney General Jeff Sessions and Rosenstein and does something to stop this mockery of justice. I am a student and try to read everything you post.

Thank you
Nan Cook

Posted by: Nan Cook | Jul 16, 2018 3:28:38 PM

Just saw a depressing example of this in the central district of Illinois. The pilot used as a mule went to trial and was convicted on two counts. The codefendant who smuggled the pot on board plead-out. Pilot got 27 months and heavy fines. Codefendant got 10 and $100.

Posted by: Diane | Jun 21, 2019 1:24:36 PM

I am a defense attorney presently confronting the abuse of heavy plea offers vis a vis the weak drug amount to sustain it.

The alternatives, go to trial and face a harsher sentence upon a more probable conviction by forcing the court and the prosecutor to expend more money and efforts in the prosecution or make a straight plea and reserve the right to contest the role in the offense and the drug amount.

Unfortunately, that is to be done in front of a USDC female judge that has a pro-government record and can merely brush off the defendant's testimony by believing snitches that are presented by prosecutors with double and triple hearsay trying to bypass objectionable hearsay that is not objectionable at a sentencing hearing.

It is definitely a frustrating scenario and a sad story for the criminal justice system when the chief of the criminal division and the first assistant USA have a set of hierarchical guidelines of years and many months for the higher-ups (first 10 or 15 defendants in large indictments) used to force mandatory minimums through gestapo type tactics.

Posted by: Frank Inserni | Aug 9, 2019 12:04:56 PM

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