The Cautionary Instruction: The trial penalty

The Pittsburgh Post-Gazette/Ipso Facto
March 15, 2013

In the courtroom and during plea negotiations, many practitioners warn of the “trial penalty.” Also known as the trial tax, this widely lamented tool of prosecutors suggests that sentences for people who go to trial are often greater than sentences for similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Ohio State University Law Professor Douglas A. Berman wrote recently that if the Department of Justice was truly concerned about unwarranted sentencing disparity in financial fraud cases… (rather than with)…defendants who have the temerity to exercise their trial rights…then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal.”

Marian Morgan and her husband John were arrested for a $28 million Ponzi scheme. John plea bargained for 10 years. Marian went to trial and got a 35 year sentence.

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.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University. “When you have that attitude,” she told the New York Times, “you penalize people who have the nerve to go to trial.”

The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt.  Last year, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial.

What if the penalty after trial was, on average, actually less than pleading guilty? One expert suggests that post-trial sentences are lower than plea bargains. University of Pennsylvania economist David S. Abrams’ found, “The empirical work in this article points to longer expected sentences from plea bargains than from trial. This is in sharp contrast to the ‘trial penalty’ theory.”

Few share Professor Abrams opinion. In fact, research done by Professor Candace McCoy of Rutgers University, found that sentences after trial were as much at nine times longer than sentences for similar offenders who plead guilty.

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