The Escalating Penalty for Asserting Your Right to a Trial


The New York Times highlights the impact of mandatory minimum sentences on plea bargains during the last few decades. While defendants have always risked a more severe punishment by pleading not guilty (hence the basis for plea bargains), the penalty for insisting on a trial has increased dramatically as legislators have ratcheted up sentences since the 1980s. The Times cites an assault case in which a Florida man rejected a plea bargain that included a two-year sentence and now, after prosecutors ramped up the charges, faces life in prison if he is convicted. In another Florida assault case, a man who claimed to have acted in defense of his family turned down a deal that involved five years of probation, only to receive a 20-year mandatory minimum sentence after he was convicted. Laws requiring such sentences effectively give prosecutors, rather than judges, the power to determine a defendant's punishment by deciding what charges to bring. Largely as a result of this shift in power, the Times says, the percentage of cases resolved through plea bargains has increased substantially:

The National Center for State Courts in Williamsburg, Va., found that the percentage of felonies taken to trial in nine states with available data fell to 2.3 percent in 2009, from 8 percent in 1976….

The Bureau of Justice Statistics, after studying partial data on state-court felony prosecutions nationwide, found that from 1986 to 2006 the ratio of pleas to trials nearly doubled.

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany's Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year.

As part of our July package on "Criminal Injustice," Timothy Lynch explained the pernicious impact of plea bargaining, noting that the popular understanding of American justice "is wildly off the mark" because only a small percentage of cases actually go to trial. In the same issue, Julie Stewart reviewed recent progress toward sentencing reform.