In the courtroom and during plea negotiations, many practitioners warn of the “trial penalty.” According to the New York Times the phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” Rachel Barkow, a professor of law at New York University told the Times. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”
“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”
Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.
While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers, reported the Times.
That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.
“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” Senior Judge John L. Kane Jr. of United States District Court in Denver told the Times.
Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina told the Times. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. According to the Times, growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts, reported the Times.
To read more: http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html?pagewanted=1&_r=1&hp