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March 26, 2021

"The New York State Trial Penalty: The Constitutional Right to Trial Under Attack"

NYS_Trial_PenaltyThe title of this post is the title of this big new report released today by NYSACDL and NACDL which, according to this press release, is "the first-ever report on the decades-long impact of the trial penalty in New York State."  Here is some background and an overview from the press release:

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

  • 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
  • The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
  • The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

  1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
  2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
  3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

March 26, 2021 at 09:47 AM | Permalink


Doug, I agree with you that the trial penalty is far too big. However, in order to understand solutions, we have to think about the cause of the problem, which is best understood through game theory.

The cost of a trial for both sides is enormous. For this reason, both sides want to avoid one. That in turn gives prosecutors an incentive to offer a big punishment discount for anyone who allows them to avoid the high costs of a trial. That punishment discount is the trial penalty.

Therefore, the trial penalty cannot be reduced without making trials less expensive. Anything else is bound to fail, because both sides, but especially the prosecutor, have an incentive to avoid a costly trial.

Posted by: William C Jockusch | Mar 26, 2021 10:36:11 AM

I do not disagree, William, but the steps involved in reducing the "cost" of a trial --- e.g., mandatory minimums for defendants, resource constraints/conviction metrics for prosecutors --- ought to be remedied independent of the trial penalty.

Posted by: Doug B. | Mar 26, 2021 11:18:22 AM

I still entirely reject the "trial penalty" framing. It is "plea leniency" and I would like to see that done away with instead.

As for this particular set of recommendations, how often is the after-trial result simply the result of choosing the trial? In many (most?) cases a plea discards many of the initial charges, the offender admits to a subset of what could be proven and the rest are dismissed. I cannot say that a post-trial sentence under such circumstances based solely upon the decision to force the prosecutor to their burden. The offender gambled and lost.

Posted by: Soronel Haetir | Mar 26, 2021 1:04:15 PM

When I was working on a committee to draft a revised code in my state, the defense attorneys were even more enthusiastic than prosecutors to have as many lesser-included offenses with lower ranges of punishment as possible.

Defense attorneys do not want somebody who "only" stole $1,000 by non-violent means to be facing the theoretical possibility of the same life sentence that a five-time felon who commits an armed robbery would be facing. And as long as you have degrees of offenses with different punishment ranges, the possibility of plea bonuses and trial penalties will exist.

Posted by: tmm | Mar 26, 2021 2:41:41 PM

So, what happens when the defendant takes a plea with the understanding of what his sentence will be, no restitution a d fines, but the judge completely ignore this, and sentenced him to more years and a lo get term of probation none of which the defendant was told

Posted by: Mona Davis | Apr 1, 2021 1:57:06 AM

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