« "Drug Reforms on the 2020 Ballot" | Main | Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment »

October 20, 2020

Notable ideas and efforts to take on the trial penalty

A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:

Commentary from Shon Hopwood and Brett Tolman, "Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System."  An excerpt (links from original):

The Constitution matters.  Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon.  When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.

The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”  Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting 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.”

News Release from the National Association of Criminal Defense Lawyers, "NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House."  An excerpt (links from original): 

On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House.  Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence.  Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden.  The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty.  In the interim, this Project provides an opportunity for a second chance to those individuals who are living it....

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

A few prior related posts:

October 20, 2020 at 06:20 PM | Permalink


I recently had a case in which I specifically mentioned the "Trial Penalty" to the Court when entering the plea.

FACTS: Mother of an infant child states that the "chubby" child wedged his leg between the slats of his crib. Mother admits she twisted, pushed, eventually freed the leg from the crib. Baby cried, but that was not unexpected. Baby slept that night, but was fussy and crying the next day. When the baby was still crying and something was obviously wrong on the third day, mother took the child to the hospital. An x-ray disclosed a broken femur (thighbone). Result: An indictment for "Aggravated Child Abuse" under T.C.A. 39-15-402 Tennessee "Haley's Law." If convicted, the mandatory sentence is 15 ~ 25 years incarceration, with no parole, and not less than 85% of the sentence to be served day-for-day. [This is the same punishment that is fixed for Second Degree Murder in Tennessee!]

So while the mother was tearful, asserted "pure heart, empty head" accidental injury to her child, the risk of being convicted by a jury was too great. At a trial by jury the medical experts would beat the drum that a fractured femur is "a life threatening medical emergency," and the jury would never be told the range of punishment applicable (Tennessee expressly prohibits anyone: judge, defense counsel or district attorney, from informing the jury of the consequences should they return a guilty verdict).

The State made an offer of settlement: a plea of guilty to a lesser included offense of Class D Felony child abuse, a partially "open" or "bare" plea, with the sentence agreed at 4 years, and the manner of service at the court's discretion after a presentence report. Probation is authorized, and even if ordered to serve four years in confinement, parole eligibility is 30%.

RESULT: My client took the settlement offer. While we felt she had a meritorious defense, she simply could not risk a jury -- acting in ignorance of the consequences -- returning a verdict of guilty.

Not only did I inform the trial court "this is a textbook example of what is known as The Trial Penalty" I also informed the trial court that if this case had been presented 30 years ago -- when under "Truth in Sentencing" laws Tennessee jurors were instructed on the range of punishment applicable to each count of the indictment -- I would have taken the case to jury trial. But "Truth in Sentencing" was abolished decades ago.

"TRUTH ... you can't stand the truth...".

And before someone asks: "Bench trial?" (since obviously the judge knows the range of punishment for each indicted offense and each lesser included offense) ... In Tennessee the District Attorney must agree to a bench trial, and this one would not.

I am a District Public Defender in Tennessee.

Posted by: Charles | Oct 21, 2020 3:25:58 PM

Sorry but "trial penalty" is giving the game away. I will stick to calling it "plea leniency" as I wouldn't mind doing away with it.

Posted by: Soronel Haetir | Oct 21, 2020 4:54:10 PM

In practice, it really is an add-on penalty for demanding trial, not the denial of leniency or "concessions" in return for a plea. I explored this distinction in a short essay I wrote several years ago, arguing that the penalty/concessions distinction is very important, and suggesting some ways to reduce the frequency and magnitude of trial penalties. Here's a link to the essay:

Posted by: Richard Frase | Oct 28, 2020 2:08:24 PM

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