The Critical Decision: Trial or Guilty Plea?

I've been following an interesting and most important discussion between some fellow criminal law bloggers.  The issue is the sentencing disparity following a guilty plea as opposed to following trial.  Those involved in the criminal law system are well aware of this practice - prosecutors routinely recommend plea deals far superior (if less time = superior) to those recommended following a guilty verdict at trial.  Scott Greenfield aptly describes the issue on his blog Simple Justice, an excerpt: 

Theoretically, a person should not be penalized for the exercise of a constitutional right, for to do so would be to undermine and negate the existence of that right.  But how then can one explain why the same person, whose alleged criminal conduct is well known to prosecutor and judge alike in advance of trial, is offered a sentence of 5 years (for example) before trial, but should he lose at trial, will be sentenced to 20 years?  The only intervening event is a trial, a right guaranteed by the 8th Amendment to the Constitution.  The defendant has done nothing more than fulfill his duty as an American by putting the government to its proof...

...Systemically, courts cannot admit that there is such a thing as the trial penalty, for to do so would be to concede that the system is inherently wrong and, indeed, unconstitutional.  But as we all know, it's real, it's there and it's a possibly the most significant part of the discussion between lawyer and client about whether to plead guilty or go to trial.  So when our "tough on crime" politicians and their supporters demand ever-increasing sentences of incarceration, it would behoove them to consider that these aren't really the sentences that judges are expected to impose, despite all the ugly rhetoric about how we need to lock people away forever to protect ourselves and our children.  Rather, the top sentence is the wedge to be used to strike fear in the hearts of defendant[s], guilty and innocent alike, to forgo the exercise of their right to trial and, should they lose, be compelled to pay the trial penalty.

I recommend Scott's entire piece, found here.  As for the effect of this practice locally - the Lafayette County Circuit Court has disposed of more than sixty felony cases in the past six working days without a single trial.  Every case has been disposed of by plea.  This can primarily be attributed to the hiring of a new Assistant District Attorney and the announced policy of plead now or go to trial and expect a recommendation of the maximum punishment thereafter.  I agree with Scott's conclusion:

...our system imposes a very hefty penalty on the defendant who seeks to put the government to its proof, with no cognizable purpose other than to dissuade a defendant from doing so.  The sad fact is that many defendant[s], indeed most, will decide against "rolling the dice" by going to trial, even though they may be innocent or have a good defense, because of the enormous cost of losing.  Twenty years in prison may not have much of an impact on the decision to engage in criminal conduct, but it can have an awfully big impact on the decision to take a case to trial.
 

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