The trial tax or “Life takes Visa”
“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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about 2 years ago
The topic of a “trial tax” is obviously controversial. However, people seem to have different definitions. There is one definition that sees it as a kind of prosecutorial cost-balancing. I don’t really think this is a “tax” per se, but rather a legitimate bargain. The other kind is where judges increase sentences solely because the person opted for a trial. This, I think is unconstitutional.
Some people have suggested to me that the only way to deal with this is for public defender agencies to arbitrarily and randomly, as a matter of policy, refuse to enter pleas other than “not guilty” under any circumstances on some days that nobody knows in advance. Three or four times per year would be enough.
Especially at the misdemeanor level, doing this would result in calamity, and although PDs would be in difficult positions every now and again, the other parties would have to reexamine what their roles and interests are.
about 2 years ago
There are few weapons a PD has in her quiver. One of the most effective is a plea strike. In jurisdictions run by bean counters they loathe these things & quickly get rid of the trial judge.
about 2 years ago
Interesting post and frankly, I agree with much of what you have written. We have all seen or at least suspected that this situation frequently occurs. I think, however, that there may be a few additional concerns/issues at play here.
First, what of the state’s argument that taking a case to trial is a reflection of the defendant’s refusal to accept responsibility for his actions (as opposed to a plea situation)? Not an explicit argument against anyone’s right to a trial, but certainly seems to put the defendant in a different position for sentencing.
Second, isn’t there an argument that by accepting a plea, the defendant effectively “saves” the witnesses from having to come to court to testify. Financial concerns aside, testifying in a courtroom full of strangers, being subjected to rigorous cross-examination, taking time off work, etc all puts additional stress on all the witnesses, particularly the victims. Though more pronounced in violent crime cases and cases involving children, some trace of that exists in every criminal case.
Again, I am not arguing in favor of widely disparate sentences, just suggesting additional reasons for differences between post-trial and post-plea sentences.
about 2 years ago
I guess I’m not the only one who saw that ad as a metaphor for the criminal justice system. Actually, I find it completely creepy, but that’s me.
But that ad demonstrates why it’s so vital to do trials on the triable cases. If you don’t disrupt the line, the presumption of guilt builds up too much momentum. Judges NEED to be reminded that the probable cause statement isn’t all there is to a case. The best way I’ve found to do that is making them sit through trials and be reminded of how different things can look when the whole story comes out.
about 2 years ago
Ah, a “plea strike” .. so that is what the kids are calling it.
There are some ethical issues involved, but IIRC correctly when I last looked at them, I resolved them in favor of the PDs.
about 2 years ago
Plea strike? What’s that?
about 2 years ago
[quote comment="6016"]I guess I’m not the only one who saw that ad as a metaphor for the criminal justice system. Actually, I find it completely creepy, but that’s me.
But that ad demonstrates why it’s so vital to do trials on the triable cases. If you don’t disrupt the line, the presumption of guilt builds up too much momentum. Judges NEED to be reminded that the probable cause statement isn’t all there is to a case. The best way I’ve found to do that is making them sit through trials and be reminded of how different things can look when the whole story comes out.[/quote]
Why do you think it’s creepy? It’s eerie and kinda funny, to be sure, but I don’t see creepy.
I agree, however, that defense attorneys should not be afraid to threaten trial (in the appropriate cases, of course) and remind the other “participants” that if they don’t make reasonable offers, you will put them through the effort of proving their case.
about 2 years ago
[quote comment="6010"]
First, what of the state’s argument that taking a case to trial is a reflection of the defendant’s refusal to accept responsibility for his actions (as opposed to a plea situation)? Not an explicit argument against anyone’s right to a trial, but certainly seems to put the defendant in a different position for sentencing.[/quote] Absolutely. That is also compounded by the disadvantage to the client who continues to profess his innocence in the face of a guilty verdict. I’ve seen judges go off on defendants for maintaining that position after trial.
[quote]Second, isn’t there an argument that by accepting a plea, the defendant effectively “saves” the witnesses from having to come to court to testify. Financial concerns aside, testifying in a courtroom full of strangers, being subjected to rigorous cross-examination, taking time off work, etc all puts additional stress on all the witnesses, particularly the victims. Though more pronounced in violent crime cases and cases involving children, some trace of that exists in every criminal case.[/quote] Yes and that is part of the bargaining process. But is it worth that much more that the sentences are significantly higher after trial than they were pre-trial?
[/quote]
about 2 years ago
What hacks me off if you argue for a lesser, the judges still punish you if you get that result. One thing I have done is tell the court what I thought the verdict would be and what sentence we would have agreed to pleading to that charge before trial. When the result I predicted occurs, I remind the court of what we would have pled to and argue strongly that to anything else would be punishing the person for going to trial. So far I have had reasonable succes with that.