Statement Of David Patton, Executive Director and Attorney-in-Charge Federal Defenders of New York (Southern & Eastern Districts) Before the Committee on the Judiciary Over-Criminalization Task Force United States House of Representatives at a Hearing Entitled “Agency Perspectives”

The ‘trial penalty’ is the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty has become so severe and entrenched that virtually eliminates the constitutional right to a trial. Our speakers discuss how “pleading out” contributes to an unjust system, creates a class of people restricted from participating in society, and how to combat it to save the right to a trial.

Incoming NACDL President Martín Sabelli (San Francisco, CA), Debevoise & Plimpton partner Judge John Gleeson (ret.), JaneAnne Murray (Director of the NACDL Trial Penalty Clemency Project and University of Minnesota School of Law Associate Clincal Professor of Law), Mudasar Khan (NACDL Trial Penalty Clemency Project volunteer attorney), and Steven Logan (Manager of NACDL's Return to Freedom Project) give an overview of the trial penalty and provide an introduction to the Trial Penalty Clemency Project.

Join NACDL’s President Martín Sabelli for a discussion with advocates who have experienced the trial penalty firsthand, serving excessive sentences after choosing to challenge their case in court.

20^th Annual State Criminal Justice Network Conference
August 18-20, 2021 | Held Virtually

The panelists discuss the trial penalty's impacts and solutions, including NACDL’s national campaign to expose and curtail the trial penalty through comprehensive state-based studies.

20^th Annual State Criminal Justice Network Conference
August 18-20, 2021 | Held Virtually

The question presented is whether it is ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks on convictions under 28 U.S.C. § 2255 in the absence of an express exclusion for claims based on ineffective assistance of counsel.

NACDL, with its diverse membership of 10,000 spanning state, federal, and military practice, wishes to express its views on preferred Commission priorities. We concur with other advocates and stakeholders that current sentences are excessively long, and certain sentencing factors disproportionately affect racial minorities within the criminal legal system. Whatever issues the Commission determines to prioritize, these flaws should be foremost in considering potential amendments.

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.

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.

In 2021, NACDL worked with partner organizations to convene leaders of the criminal legal reform movement for a two-day Summit on the trial penalty. The Summit, "The Constitutional Right to Trial: Organizing a National Movement to End the Trial Penalty," included discussions focused on understanding the root causes of the trial penalty, solutions, and forming a national coalition dedicated to this work. [Released May 2024]

1:24-cv-01656 (D.D.C.)

The American Civil Liberties Union (ACLU) and NACDL filed a lawsuit under the Freedom of Information Act (FOIA) seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices.

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.