"I've read transcripts in which judges say things like, if you plead before trial, you get mercy; after trial, you get justice," said Martín Sabelli, past president of the National Association of Criminal Defense Lawyers, told NPR. "That's a threat."
Sabelli said the system is most harsh on Black and brown people, and low-income people — those who tend to have the least power.
"Every day, this results in the virtual extinction of criminal trials from our criminal legal landscape and converts our courtrooms into these ... assembly lines where people are just being brought in one after another in these red, yellow, green, black jumpsuits," he said.
Sabelli and a group of other legal and civil liberties advocates are working to focus public attention on the trial penalty, which they say has contributed to the near disappearance of criminal trials in many places.
In the federal system, about 98% of cases end in plea deals. In big states like Texas and New York, the numbers are similar. And in one county in Arizona, there were no criminal trials at all from 2010 to 2012, according to a recent report from the American Bar Association.
The U.S. Constitution guarantees that people accused of crimes have the right to a trial. But in recent years, trials have become an endangered species.
"That's not what justice should be about," said Miriam Krinsky, a former prosecutor who now directs the reform-minded group Fair and Just Prosecution. "You know, to the extent that there should be some kind of an incentive to plead early and not put survivors or others through the process and the trauma of going to trial, what does that look like? And is something far more modest the right starting point, as opposed to that draconian, three-time increase in a hammer over somebody's head?"
Cully Stimson is another former prosecutor and a senior legal fellow at the conservative Heritage Foundation, where he writes about crime and justice. Stimson said the system works pretty well as it is.
"The fact that many cases result in a guilty plea is not a problem, because in many cases — and I've been a criminal defense attorney — the person is guilty and they're taking advantage of a plea deal that subjects them to less time," he said. "So I don't think there is a trial penalty. I think it's a trial privilege."
Stimson said there are lots of good reasons for defense lawyers to encourage their clients to plead guilty. For example, the clients may have a prior criminal record, and a plea bargain may be their only way to win a shorter prison term.
But the advocates pressing for change say prosecutors have too much power to stack up charges against defendants and create a situation where they face so much prison time that even innocent people feel pressure to strike plea deals.
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