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The Trial Penalty

Welcome back to Policy Wednesday! This week we will be discussing the Trial Penalty.  This penalty is the difference between the sentence length offered in a plea bargain versus a trial.  For example, a defendant charged with murder might face 30 years in prison if they are convicted at trial. However, prosecutors may offer said defendant a reduced sentence with significantly less jail time, say 6 years, if they agree to plead guilty. The promise of a shorter sentence incentivizes defendants to waive their right to a trial by jury and to plead guilty. In fact, the average post-trial sentence is over three times as long as the average plea sentence. Consequently, less than 3% of all state and federal cases go to trial.  

There are many issues that arise as a result of the trial penalty.  For one, innocent people charged with crimes they did not commit have pled guilty to those crimes due to fear of what kind of sentence they might receive at a trial. Estimates range from 1.6% to 27% of defendants that plead guilty may actually be innocent.  We know specifically of 359 cases in which defendants plead guilty to crimes they were exonerated for after the fact.  Several other issues abound from the trial penalty as well. The voice of the public within the criminal defense system is muted as fewer trials take place. Judges are sidelined from their supervisory role.  

The trial penalty is a highly complex issue that will require a variety of reforms to solve, including legislative fixes.  Draconian federal sentencing guidelines and mandatory minimums have contributed significantly to the growth of this issue, and those will need to be addressed in order to fix the trial penalty. However, there is still a great deal prosecutors can do to reduce the trial penalty. As District Attorney, I vow that our office will not seek excessive sentences after conviction at trial.