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May 3, 2023

New "End the Trial Penalty Coalition" seeks to end "coercive elements of plea bargaining" and to restore right to a jury trial

Via email, I received notice of a new colelction of advocacy groups called the "End the Trial Penalty Coalition."  Here are excerpts from the email/press release from this new Coaltion (with links from the original):

Twenty-four criminal justice organizations, impacted people, think tanks, academics, activists, and reform leaders from across the ideological spectrum have united to end the trial penalty -- the substantial and coercive difference between the sentence in a plea offer prior to trial versus the much greater sentence a defendant often receives after trial.  Those who choose to go to trial and are convicted often face sentences that are, on average, three times the plea offer and sometimes measured in decades.

The coercive and punitive effects of the trial penalty are so pervasive that they have virtually eliminated our constitutional right to trial. In fact, of cases ending in a conviction never go to trial, leading to a range of issues reverberating through our legal system, including the waiver of numerous constitutional freedoms and rights, overcriminalization, loss of public oversight, and racial injustice.  The Coalition aims to restore the right to trial, helping right these wrongs to ensure a fair, rational, and humane criminal legal system.

Members of this new Coalition will work together to raise awareness of the adverse effects of a justice system without trials, advocate policy reform, and forge relationships with key policymakers.  The Coalition will also serve as a resource for people interested in participating in an impactful criminal legal reform movement.  The Coalition has published a comprehensive which includes policy ideas to combat coercive practices in the plea bargaining process, to improve data collection and transparency, and to foster post-trial reform and accountability measures.

May 3, 2023 at 04:15 PM | Permalink


Want a trial rather than a plea deal? Fine. It's easy. Tell the prosecutor, "You can save your breath sonny. I'm not interested in a deal with you. Your charge is baloney and I'm innocent. You have the entire burden of proof and you have to get every one of the 12 jurors. Since I didn't do it, you won't get there. Set the case for trial, wiseguy."

Say that, and I guarantee you you'll get your trial.

Stop beggaring other people to do for you what you can do for yourself.

Posted by: Bill Otis | May 3, 2023 5:43:54 PM

I went to the website and it looks like “across the ideological spectrum,” means one guy from CATO. The rest seem to be the regular pro-criminal groups.

Posted by: TarlsQtr | May 3, 2023 6:39:21 PM

This entry inspired me to write a response on my Substack page, "Ringside at the Reckoning." https://ringsideatthereckoning.substack.com/p/has-excessive-use-of-plea-bargaining

Posted by: Bill Otis | May 4, 2023 9:44:03 AM

TarlsQtr Well, there are a more organizations that are not on the left side of the political spectrum - Right on Crime, Tzedek, and for the most part Famm.

I'm just getting ready to read Ringside at the Reckoning. I do have a bias but it's always important to know the strength of the current or I turn into a one note song.

Posted by: beth curtis | May 4, 2023 1:03:45 PM

Beth --

I'd listen to your song even if it were only one note.

Posted by: Bill Otis | May 4, 2023 4:38:29 PM

I wonder how many of these groups have practicing criminal defense attorneys. As I have noted before, when I was on a state bar committee rewriting the criminal code, the defense attorneys were even more eager than the prosecutors to enable the submission of lesser-included offenses to the jury. They don't want big sentencing ranges with the trial judge, in his discretion, being able to give weight to aggravating factors that would justify a higher sentence. They want those facts to have to be decided by the jury before the trial court can impose a high sentence.

Once you create those elements that distinguish rape first from rape second (for example), that becomes a ready source of discussion in plea negotiations between the State and the defendant. On the one hand, the State knows that the victim's testimony would fit the legal definition of forcible compulsion, but that juries tend to think that forcible compulsion requires more force than the law actually requires and that the victim would rather not have to testify. On the other hand, the defense knows that, if the jury finds forcible compulsion, the client is facing a significant sentence. That potential makes it easier for the defense to convince the client to plead to rape second (even though the evidence supports rape first) and for the State to decide that it is not worth the fight. But, if you require the State to be bound by a plea offer, the chances that the State will offer a plea to the lesser offense becomes much less likely.

Part of what goes into a plea offer from the State is what the prosecutor thinks is fair, but there is also an element of discounting any potential sentence by the likelihood that the jury returns a verdict on a lesser count or acquits (or the trial court excludes evidence) as well as a desire to minimize the resources spent on the "easy" cases so that the prosecutor can spend their time on the more difficult cases. Frye has already put a disincentive on making plea offers -- although it creates the out of allowing a hearing on the plea offer prior to the beginning of trial prep. Anything else that penalizes the State for making a plea offer will make negotiating a resolution more difficiult.

Posted by: tmm | May 5, 2023 10:52:45 AM

tmm --

You should do your own Substack. I'm serious. I'd subscribe today.

Posted by: Bill Otis | May 5, 2023 12:55:27 PM

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