Vanishing Trials and Why We Should Save Them


By Ann Dorn

Some lawyers tell clients that “trial is a good thing if you win, and a bad thing if you lose.” The decision to take a case to trial is complex, and should be carefully considered with the help of an attorney. However, while there are significant advantages in going trial in some cases, a new report from the National Association of Criminal Defense Lawyers (NACDL) argues there are too many defendants who are afraid to go to trial because of retribution in the form of harsher charges or longer sentences, known as the “trial penalty.” This idea is supported by United States Sentencing Commission data, which has found that have found sentences given following a conviction at trial are on average three times longer than plea deals, raising the stakes if a defendant chooses to take their case to trial.

Going to trial shouldn’t come with additional risks or longer sentences, and we shouldn’t accept coercive conditions in the justice system, the NACDL says in the report titled The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.

Concerns about how the trial penalty affects the justice system are well documented. Thirty years ago, about 20 percent of criminal cases proceeded to trial; today, that number has fallen to three percent. As a result, fewer attorneys have trial experience or even the willingness to take a case to trial, and both judges and prosecutors are losing the “edge that trials once gave them,” according to the report.

Additionally, the pressure to plea can be coercive, the report found. Prosecutors often have the ability to add or drop charges up until the case is resolved, and frequently decrease the severity of charges in exchange for a plea, influencing a defendant’s decision to exercise their right to trial. Authors of The Trial Penalty report believe this a problem in cases where prosecutors use it punitively, increasing or amending charges to be more serious if the defendant decides to go to trial.

The Trial Penalty report offers additional evidence that trial penalties have a negative effect on defendants and society: despite the increasing number of defendants who choose to accept a plea offer, these deals actually encourage longer sentences, which contributes to mass incarceration and affects the poor and people of color disproportionately. Finally, an estimated 1.6-27 percent of all defendants who plead guilty may actually be factually innocent, according to research.

All of this results in a failure to fully protect constitutional rights and should be addressed, according to the NACDL. The Trial Penalty report issues a number of recommendations, including repealing or reforming mandatory minimum sentencing, and advocates for the adoption of a review process to make sure defendants who are convicted and sentenced after trial do not receive substantially different sentences than those who plead guilty to the same crime.

If you or a loved one is charged with a crime, you need an experienced, aggressive, and knowledgeable defense attorney willing to take your case all the way to trial.

Call Gause Law Offices today for a free consultation – 206-660-8775.