“If you go to trial, you will get more time” is a common admonition to criminal defendants that are considering plea deals. We are used to it; it’s a part of practice. It is a natural consequence of the bargaining process. In plea bargaining, you’re negotiating a settlement and in that, both parties give a little. The State is spared the expense of a trial, the risk of an acquittal and one less case they have to prosecute. The defendant gets a lighter sentence and gives up his Constitutional rights.

But why the great disparity between rejected plea offers and sentences after trials? If a case was worth 5 years before trial, surely it can’t be worth 35 after? There does seem to be a desire to punish a defendant for going to trial, as opposed to simply including the value of the factors that would have been eliminated. I had a client a few years ago who was charged with 10 counts of a felony. Prior to trial, the offer was a sentence of 20 years, fully suspended. He exercised his right to go to trial, was acquitted on 9 of 10 charges and received a sentence of 20 years suspended after 9.  That’s right, 10 cases were worth zero years, but one – after trial – is worth 9.

As a commenter to imbroglio’s post points out, we’re obsessed with judicial efficiency and so the punishment is punitive. It’s like that Visa commercial where everyone is using the card and the one guy with cash holds up the line and creates problems.

Upon watching that commercial again, it’s scary how similar it is to the criminal justice system. People filing in, one after the other, the deli representing the well-oiled criminal justice system, the repeat offenders whose orders are known to the chefs, people swiping in and being sent on their way, the “now serving” number ticking rapidly and then the protagonist, whipping out his wallet and offering cash, causing a meltdown – food going flying, things not landing in their place, people bumping into each other. I bet he’s not welcome back in that deli and our defendant is not welcome back in the criminal justice system, which is accomplished by locking him away for a long time.

Don’t believe me? Watch it for yourself:

[youtube]http://www.youtube.com/watch?v=Xy_PxLw1B_c[/youtube]

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