In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End." As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link.
Though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period. Valuable, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague MartÃn Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time. And this week, these two additional pieces are now accessible to all (with first paragraphs quoted here):
Two empirical facts underlie ongoing policy debates over plea-trial differences in federal punishment: defendants who are convicted at trial receive significantly harsher sentences, and the overwhelming majority of federal defendants forego their constitutional right to jury trial and enter into plea agreements. A passel of studies finds large plea-trial differences in federal sentencing. Across jurisdictions, offense types, and time periods, research convincingly demonstrates that defendants convicted at trial receive more severe punishments than similar defendants who plead guilty. This “trial tax” or “plea discount” is among the most robust findings in the empirical sentencing literature (Johnson 2019). At the same time, guilty plea rates in both state and federal courts have ballooned. In federal court, more than 97 percent of convicted defendants plead guilty (Motivans 2019), lending credence to Justice Anthony Kennedy’s observation that “plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system” (Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012)).
The trial penalty is one of the most lethal tools in the prosecutor’s kit. With it, the government coerces defendants to plead guilty and punishes those who don’t. It transforms what should be a defendant’s considered and informed decision about whether to exercise the constitutional right to be judged by a jury of one’s peers in open court into a backroom roll of the dice. It is the criminal justice equivalent of a shakedown — more extortion than orderly proceeding.
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