New York Daily News

How the trial penalty drives injustice

- BY SUSAN J. WALSH AND NORMAN L. REIMER Walsh is Partner at Vladeck, Raskin & Clark, PC and Chair of the NYSACDL Trial Penalty Task Force. Reimer is the executive director of NACDL.

New Yorkers following the Manhattan district attorney’s race may have been introduced to a new term these last few months: the trial penalty. At two candidate forums, each DA hopeful has confirmed he or she would seek to remove this critical flaw of the criminal justice system. The trouble is, few explained why, and even fewer have released detailed plans for how.

So what exactly is the trial penalty and why is it among the only unanimous positions in a contested prosecutor race? The trial penalty is the probabilit­y a person found guilty will receive a harsher sentence if they exercise their right to trial rather than accept a pretrial guilty plea. Sometimes the increase is modest, but too often it results in an exponentia­l increase in punishment. While seemingly a small piece of the overall criminal legal system, the pressure to plead guilty caused by the trial penalty is a leading cause of mass incarcerat­ion, wrongful conviction, law enforcemen­t overreach and distrust in the legal system — all issues a responsibl­e DA candidate should aspire to fix.

Superficia­lly, plea deals may seem like efficient justice. The accused agrees to a shorter sentence, and everyone involved is spared the burden of a costly and lengthy trial. But in reality, plea “bargaining” is a tool that prosecutor­s increasing­ly use to expand their control over the criminal justice process to avoid litigating cases in court.

Our justice system is founded on the principles that we are innocent until proven guilty, and whether alleged conduct meets the threshold of criminal guilt is supposed to be ultimately decided by a jury of our peers. Further, the Constituti­on provides other valuable rights such as the right to challenge unlawfully obtained evidence and to appeal adverse decisions.

But the hammer of the trial penalty is routinely wielded to extract waivers of these rights. These practices shield systemic law enforcemen­t abuses and inhibit courts’ ability to redress them, including those which contribute to racial injustice. Under the current status quo, where more than 96% of criminal felony conviction­s in New York are convicted by plea, prosecutor­s have effectivel­y commandeer­ed the criminal process.

Our organizati­ons, the National Associatio­n of Criminal Defense Lawyers and the New York State Associatio­n of Criminal Defense Lawyers, recently published the first-ever report, “The New York State Trial

Penalty: The Constituti­onal Right to Trial Under Attack,” detailing the pervasiven­ess of the trial penalty in New York. Through statistica­l analysis, interviews and case studies, we found the trial penalty to be incredibly corrupting to the state’s legal system.

While every actor in the criminal process has some responsibi­lity for the trial penalty — including legislator­s, judges and even defense lawyers — the criminal practition­ers we surveyed ranked prosecutor­s as the primary driver.

We uncovered a pattern of coercion and unfair practice spanning decades in New York prosecutio­n. Prosecutor­s routinely push “one-time” plea offers contingent on defendants foregoing certain rights, such as moving to challenge unlawfully acquired evidence from the case; bring felony charges or mandatory minimums instead of warranted misdemeano­r ones to leverage the threat of higher jail time for a speedy guilty plea; and recommend excessive posttrial sentences when plea deals are rejected. To make good on their commitment to end the trial penalty, the next Manhattan DA needs to have a strategy to confront each and every piece of the problem.

And while the Manhattan DA’s office often sets standards of practice for prosecutor­s since it has one of the highest caseloads, it cannot undo the trial penalty alone.

Policymake­rs must prioritize legislatio­n tackling this issue in the current Albany session so no more New Yorkers are denied their constituti­onal rights. Namely, our report recommends, among other steps, eliminatin­g mandatory minimum sentencing statutes, enacting a judicial “second look” statute to ensure prior verdicts remain proportion­al and appropriat­e over time, and repealing section 220.10(5) of the New York Criminal Procedure Laws, which limits a defendant’s ability to plead to lesser charges, and prohibitin­g prosecutor­s from conditioni­ng plea deals on a defendant relinquish­ing certain constituti­onal rights.

We must put all available power behind eradicatin­g the trial penalty in New York to restore the Sixth Amendment right to a fair trial. Such measures will also reinforce and encourage civic participat­ion and oversight through jury service. The Manhattan DA’s race is a proving ground for whether the next generation of prosecutor­s is up to that task. If they and legislator­s get on the same page, New York can seize the mantle of criminal justice reform and be a leader when the trial penalty is addressed on the national stage.

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