The problem of overcriminalization is multifaceted, with many aspects that pervade our criminal legal system, including the criminalization of conduct that is not harmful to society or others; criminal statutes that lack adequate mens rea, or intent, requirements; ambiguous and vague language in criminal statutes that provide insufficient notice and insufficient limitation on what conduct is criminalized; and the imposition of vicarious liability with insufficient requirement that the charged person was involved in, or even knew about, the underlying conduct.

The National Association of Defense Lawyers (NACDL) respectfully submits the following comments on these important proposed amendments.

That Pressure Almost All Defendants to Plead Guilty

Criminal defense lawyers should think about how their representation changes depending upon whether the prosecutor’s evidence is overwhelming, whether they believe the client is guilty but the prosecutor’s case is shaky, or they believe the client is innocent of the charges.

The trial penalty – the massive difference between the sentence criminal defendants typically receives after a plea bargain and the much higher sentence defendants typically receive if they are convicted at trial – is one of the most significant characteristics of the modern American legal system.

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. [NYSACDL & NACDL] [Released March 2021]

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. [Released July 2018]

Comments on rules & regulations, letters, and testimony submitted to various federal and state legislators and government agencies on behalf of NACDL.

The Plea Bargaining Institute (PBI) is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations, and practitioners working in the plea bargaining space to share knowledge and collaborate.

The Plea Bargaining Institute is excited to announce its new website launching in the Fall of 2023! The site will further the below mission of the Institute and be a first-in-class resource on plea bargaining, and its use in the criminal system. Please check back for updates.

Produced by Wynette Yao and Travis Edwards, “The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice between pleading guilty or going to trial. Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutional right to trial instead of pleading guilty. The documentary reveals how the trial penalty has led to the shocking disappearance of one of the most fundamental individual rights and the explosion in America’s prison population.

The undersigned groups are pleased to see that the U.S. Sentencing Commission has made the comparing of sentences imposed in cases disposed of through trial versus plea one of its priorities for the amendment cycle ending May 1, 2024. As groups with significant experience examining the trial versus plea sentencing disparity, we respectfully request a meeting with Commissioners or staff or both who are working on this important issue.

The undersigned groups urge you to oppose the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2023 (S. 412), which would create a new federal crime carrying a one-to-five-year prison sentence for sharing intimate photos of a person without that person’s consent. We recognize that this bill is well intentioned, but we are concerned that it will sweep in and criminalize innocent conduct and worsen the trial penalty that many criminal defendants—including many people who are actually innocent—face in our justice system.

The National Association of Defense Lawyers (NACDL) respectfully submits the following comments on the Commission’s possible policy priorities for the amendment cycle ending May 1, 2024.

An accident led to a DUI Manslaughter charge against a graduate student who had a clean driving record. After conviction, a judge gave the young man a 35-year sentence. In the local jurisdiction, nine years was the average sentence for the crime. What distinguished the graduate student’s case? The trial penalty. Robert Reiff says the young man was punished severely for his decision to proceed to trial.