New York Daily News
How the trial penalty drives injustice
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.