Wednesday, March 31, 2021

New report on the 'trial penalty' in New York

The New York State Association of Criminal Defense Lawyers (NYSACDL) and the National Association of Criminal Defense Lawyers (NACDL) released the first-ever report on the decades-long impact of the trial penalty in New York State—The New York State Trial Penalty: The Constitutional Right to Trial Under Attack—including statistical analysis of the prevalence of the trial penalty, personal stories demonstrating how the issue impacts all New Yorkers by effectively removing a critical check on the state’s justice system, and recommendations for how policymakers and prosecutors can reverse this trend and protect New Yorkers’ constitutional rights, according to a Press Release.

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

  • 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
  • The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
  • The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

·         Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.

·         Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.

·         Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

“This report makes absolutely clear the trial penalty has metastasized in the system well beyond individual punishment. It is a threat to our constitutional rights and simultaneously allows—even encourages—the abuse of power by prosecutors and judges and too often buries police misconduct which never sees the disinfecting light of a courtroom,” said Susan Walsh, Trial Penalty Project Chair at NYSACDL. “Policymakers must recognize the devastation the trial penalty has caused in New York and take steps to reform the system. Some changes, like collecting data to further study the problem, are simple. Others, like providing greater sentencing flexibility and opportunities to revisit excessive sentences may be more complex. But we must resist the systematic assault on the fundamental right to a trial. No one, including defense lawyers, should be complacent about practices that inhibit the exercise of basic rights and punishes those merely for asserting them.”

“Punishing those who choose to exercise their right to a jury trial is not just unconstitutional, it lets prosecutors and law enforcement exercise authority unchecked, with disastrous results,” said Norman L. Reimer, NACDL Executive Director. “The ability to coerce the waiver of basic rights under threat of the trial penalty undermines transparency, shields unlawful law enforcement from judicial review, and perpetuates racial disparity in the criminal legal system.”

In 2018, NACDL released a groundbreaking report detailing the consequences of the trial penalty across the country, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. In 2020, NACDL and FAMM (formerly known as Families Against Mandatory Minimums) released a documentary film on the trial penalty, “The Vanishing Trial.” A trailer for the film can be viewed here.


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