The National Association of Criminal Defense Lawyers (NACDL) recently published a report titled, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, that examines specific cases, data and statistics to explain the decline in the criminal trial and the steady rise in plea deals. Over the last 50 years, defendants chose trial in less than three percent of state and federal criminal cases—compared to 30 years ago when 20 percent of those arrested chose trial. The remaining 97 percent of cases were resolved through plea deals.
The report reasons that the “trial penalty” is the underlying reason for the discrepancy in the shorter length of sentences offered pre-trial through plea deals versus the much longer and more severe sentences offered post-trial. According to the report:
Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose…This [trial] 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.
Because a defendant is more likely to receive a lesser sentence if they choose a plea deal rather than a trial, why risk the possibility of receiving more time behind bars?
One of the report’s key findings, and an alarming outcome of the “trial penalty,” is the prevalence of innocent people who, instead of going to trial, plead guilty to crimes they did not commit.
“There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk,” the report reads.
Just yesterday, the Innocence Blog wrote about last week’s episode of Last Week Tonight with John Oliver, which featured exoneree Rodney Roberts’ story about why he took a guilty plea despite being innocent. In the segment, Roberts explains how his lawyer advised him to take the plea deal instead of risk a trial penalty.
“My lawyer said, ‘If you take this deal, they’re only offering you two years. And, if not, they’re going to take it off to trial and the judge is ready to give you a life sentence if you get found guilty, and I think you’re going to get found guilty.’ This is my attorney telling me [this]—the one person I had there to help me.”
Is there a solution? Not a straightforward one, according to the report, which offers many recommendations, including providing defendants with full discovery, scrutinizing plea bargains and repealing mandatory minimum sentences. In the meantime, guilty pleas will continue to replace trials for this straightforward reason: “Individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”