How the "Trial Penalty" Drives Mass Incarceration

It can be hard for non-lawyers to understand all that goes into mass incarceration. If you’re wondering about it yourself, Emily Yoffe’s article in The Atlantic called “The Presence of Justice: Innocence Is Irrelevant” is a great place to start.

Yoffe examines what is known as the “Trial Penalty”: the risk of disproportionately harsh punishment if a defendant rejects a plea offer and proceeds to trial. As the National Association of Criminal Defense Lawyers noted, trial was “[o]nce the centerpiece of our criminal justice ecosystem,” and there was a broad consensus that the system only achieved “fair and just results . . . when trials occur[ed] in meaningful numbers.” Trials no longer occur in meaningful numbers, largely because of the risks of going to trial. As Yoffe explains:


""This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”


Prosecutors have so much power to threaten defendants—with additional charges, lengthier sentences and mandatory minimums, among other things—and the procedures that protect a defendant’s right to a fair trial have been so diminished, that only the most reckless defendants risk the “penalty” of losing a trial. What does this mean in practice? More guilty pleas, more convictions, more prison time—and more injustice:


“Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015, the most recent year for which figures are available.”

“As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. . . . But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration."


How bad has the problem gotten? Often the “trial penalty” is so harsh, it even induces guilty pleas from the innocent:


“Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the history of democratic government.”


By increasing the number of convictions, the “trial penalty” carries with it many collateral effects:


Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system.


Perhaps more than any other, the phenomenon of the “trial penalty” encapsulates and highlights the myriad ways in which our criminal justice system is broken. Prosecutors and law enforcement have become so powerful, and individual rights have deteriorated so thoroughly, that the government can convict almost any defendant of almost anything. Prosecutors can virtually dictate the outcome of a criminal case. Defendants just have to hope that those prosecutors are fair:


“Critics on the left and the right are coming to agree that our criminal-justice system, now so reliant on plea bargaining, is broken. Among them is Jed S. Rakoff, a United States district judge for the Southern District of New York, who wrote about the abuses of plea bargains in 2014, in The New York Review of Books. “A criminal justice system that is secret and government-dictated,” he wrote, “ultimately invites abuse and even tyranny.” Some critics even argue that the practice should be abolished. That’s what Tim Lynch, the former director of the Project on Criminal Justice at the libertarian Cato Institute, believes. The Framers adopted trials for a reason, he has argued, and replacing them with plea bargains—for convenience, no less—is unconstitutional. . . .

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.”