Saturday, April 13, 2013

GateHouse: The trial penalty

Matthew T. Mangino
GateHouse News Service
April 12, 2013

The right to trial by jury is mentioned at least three times in the U.S. Constitution — Article III, Section II; the Sixth Amendment; and the Seventh Amendment. All three references attest to the precept that trial by jury is a bedrock principle of American governance.

Yet, in courtrooms nationwide, many practitioners warn of the “trial penalty.” The trial penalty is widely lamented as a tool for prosecutors. The idea is 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 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 received a 35-year sentence.

The issue of guilt or innocence seems to have become an afterthought. Defense attorneys complain that the trial penalty has forced defendants to look beyond a claim of innocence and weigh the risk of getting pounded after a guilty verdict.

“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. The number of trials would increase as would the direct appeals and collateral challenges.

A system that is already overburdened would be pushed to the limit.

However, the efficiency of the system does not warrant the sacrifice of fundamental constitutional rights. Research conducted in 2005 by professor Candace McCoy of the John Jay College of Criminal Justice found that sentences after trial were as much as nine times longer than sentences for similar offenders who pleaded guilty.

Not everyone agrees. University of Pennsylvania economist David S. Abrams’ empirical research found “longer expected sentences from plea bargains than from trial. This is in sharp contrast to the ‘trial penalty’ theory.” According to Abrams, defendants who reject pleas and go to trial “do substantially better.”

Few share Professor Abrams opinion. Some legal scholars have gone as far as comparing plea bargaining to torture. No judge or prosecutor is going to overtly deny an accused her right to trial. However, the tacit approval of a system that makes it prohibitive for those accused of a crime to exercise their right to trial is wrong and serious thought must be given to how to make it right.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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