This month Robert Sanger reviews Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class by Dan Canon.

This month Elizabeth Ramsey reviews Punishment Without Trial: Why Plea Bargaining Is a Bad Deal by Carissa Byrne Hessick.

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.

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.

Garners Broad Support with the Launch of a National Reform Effort

The “trial penalty” refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the longer sentence a defendant receives if convicted at trial. The manipulation of the potential penalty creates pressure to waive the right to a trial. With the launch of the Trial Penalty Report, NACDL hopes to begin a reform movement.

on the Border

Operation Lone Star, a Texas effort to secure the border, leverages the trial penalty to secure plea bargains. 

Expanding the Reach of Criminal Laws Without Increasing the Burdens on the Prosecution

Many voices have sounded the alarm and are mobilizing to untangle the complex web of laws, rules, and culture that authorize coercive plea bargaining practices.

We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. What is the reality? We have abandoned the system of public jury trials established in the Constitution and Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power.

The Long Shadow of the Trial Penalty

Thanks to the trial penalty, criminal trials no longer offer sufficient opportunities for the community to evaluate the conduct of the police during citizen-officer encounters. Police and prosecutors can effectively coerce guilty pleas thereby obscuring, even deliberately shielding, unlawful police conduct from public exposure and review by the courts.

Why the Trial Penalty Does Greater Violence to People of Color and the Poor

The trial penalty – the difference between a pretrial settlement offer and a post-trial sentence – punishes everyone caught in the machinery of the criminal legal system but injures people of color and the poor more than others.

While the United States remains deeply divided over many issues, a broad consensus is emerging that the country must face the profound injustices – particularly racial and socioeconomic injustice – in the criminal legal system.

NYSACDL Report Confirms Near Extinction of Trials in the Empire State

In March 2021, NACDL and NYSACDL released the trial penalty report. The report defines what practices are encompassed by the trial penalty, identifies the underlying causes, depicts it through profiles of individuals, and proposes concrete reforms to curtail the prevalence of the trial penalty.

The Feeney Amendment: Effective Date and Ex Post Facto Issues Peter Goldberger, Felicia Sarner