« Utah prosecutors urge repeal of death penalty as "grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good" | Main | "Punishment and the Body" »

September 16, 2021

Making the case for a ceiling on the trial penalty

Marc Levin has this notable new commentary on plea practices and the trial penalty over at The Crime Report under the headline "‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan." I recommend the piece in full, and here is a taste:

Akin to a peace deal in the American justice system, plea agreements enable defendants to avoid the worst possible scenario in exchange for waiving their right to a battle at trial.  However, the current approach to these deals means a defendant who does not concede defeat upfront can obtain no assurance regarding their sentence if convicted.

This dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.

Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty....

The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.

One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial.  Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

Russell Covey, a professor at Georgia State University College of Law who has studied plea bargaining, has outlined how this sentence “ceiling” tied to the best plea offer could work in practice.  The late dean of Harvard Law School, James Vronberg, has also weighed in, arguing that a differential of 10 to 20 percent would be sufficient to entice defendants who are guilty to enter mutually beneficial plea agreements, and would not be coercive....

Whether in peace deals or plea bargaining, there is value in reaching an advance agreement on at least a range of ultimate outcomes that is contingent on one party’s defeat.  Yet current plea bargaining practice offers defendants an all-or-nothing proposition, requiring them to accept the risk of a far more severe sentence in order to pursue their constitutional right to trial and thereby test the evidence against them.

The imperative for ensuring a sentence bears some relationship to the plea offer is not just about avoiding people pleading guilty to crimes they didn’t commit.  It is also essential at the systemic level to achieve greater fairness and reduced sentencing disparities in the resolution of comparable cases.  Reining in the trial penalty will ensure the efficiency imperative does not sideline the pursuit of equity and due process.

September 16, 2021 at 07:02 PM | Permalink

Comments

Just a question - how is the right to trial preserved if there is still a differential in sentencing between a trial and accepting a plea deal?

Posted by: beth curtis | Sep 17, 2021 2:46:12 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