Mimesis Law
19 April 2021

The Problem Isn’t Plea Bargaining, It’s The Trial Tax

Jan. 25, 2016 (Mimesis Law) — The Washington Post has been taking an “in-depth look” at the right to a fair trial. One of the articles, written by Tim Lynch, Director of the Cato Institute’s Project on Criminal Justice, draws a bead on the plea-bargaining process:

Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.

In a plea bargain, the prosecutor typically offers the defendant a reduced prison sentence if he agrees to waive his right to a jury trial and admit guilt in a brief hearing before a judge. Prosecutors use their power to pressure people who have been accused of a crime, and are presumed innocent, to waive their right to a trial and admit guilt.

Which is true, so far as it goes. Plea bargaining isn’t necessarily a bad thing, though. If the point of a trial is to make the government prove the guilt of the defendant beyond a reasonable doubt; and there’s video footage of the defendant committing the crime, along with eyewitnesses, a Mirandized confession, and the defendant’s fingerprints on the smoking gun, there’s probably no point in having a trial. Phrased another way, oftentimes guilt or innocence isn’t the issue, and the defendant (and his attorney) is simply looking to get the best deal possible. Lynch gets this part:

But from a defendant’s perspective, plea bargaining extorts guilty pleas. Casual observers of our legal system will sometimes say that they would never plead guilty to a crime if they were innocent. An easy claim to make — but it is another thing when your freedom is actually on the line.

Imagine learning that the government has a “witness” who is willing to tell lies about you in court. And then your own attorney tells you that his best advice is for you to go into court, say you’re guilty and accept one year in prison instead of risking a 10-year prison sentence should the jury believe the lying witness. It’s an awful predicament for innocent people who get swept up in criminal cases.

But here’s where it gets complicated. The problem isn’t going to trial, as such. The problem is going to trial and losing. If the difference is between 1 year for a guilty plea, versus 10 years after losing at trial; and you only have a 50% chance of winning….well, do the math.

Every defense attorney has had this conversation with a defendant at some point or another. Most have probably had conversations with defendants in which they tried to talk their client out of a plea, but the defendant didn’t want to run the risk.

But back up a second. Why should there be such a disparity between a guilty plea and a guilty verdict? That’s the trial tax. From the prosecution’s (and most judges’) view, it as an incentive to prevent criminals from wasting their valuable time. From the defense perspective, it’s to punish the defendant for exercising his constitutional rights.

There are many different ways of imposing a trial tax. One way, of course, is for the prosecutor to request more prison time after a trial than a guilty plea. Another way is charge bargaining, where the prosecutor offers to amend the charges to something carrying a less severe penalty. Charge bargaining is particularly effective when the offer is a reduction from a felony to misdemeanor, and even more so in cases involving mandatory minimums.

Except, the trial tax isn’t a constitutional, or even statutory, requirement. It’s a product of bad habits, and bad incentives. If the point of the criminal justice system is to push defendants from arraignment to sentencing as efficiently as possible, then the trial tax makes perfect sense. If the point is to discover the truth of the allegations against the defendant, then the trial tax is just another way to tilt the playing field in favor of the state.

So what to do about it? Reform of this aspect of the justice system has to come mostly from judges. It’s the judge that imposes the trial tax, at sentencing, but there’s nothing saying that he or she has to collect it. Essentially, then, judges need to change their thinking (I know, good luck with that, right?) on defendants who lose at trial. It’s not a waste of time, it’s what’s supposed to be happening. This is yet another reason why mandatory minimums need to go. Usually, the mandatory minimum has nothing to do with punishment, it’s just a bludgeon to coerce a plea to a lesser offense.

Want to reform the system to make it less coercive? Then make it so the defendant doesn’t stand to lose anything by asserting his innocence.

6 Comments on this post.

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  • jdgalt
    25 January 2016 at 2:38 pm - Reply

    The judges feel they’re overworked, so they’re not about to stop collecting the trial tax (nor was that judge in Oregon even upheld when he tried to refrain).

    No, we need constitutional change to take that ability away from prosecutors and make them take every case to court.

    • Eva
      25 January 2016 at 8:17 pm - Reply

      I would like to see some kind of constitutional change too regarding this plus abolishing mandatory minimums.

  • Eliot Clingman
    26 January 2016 at 1:34 pm - Reply

    Why couldn’t the regulation of the trial penalty be via legislation? In that regard, I think the US gov’t and each state should be studying what other common law jurisdictions are doing.

    Although the UK has become hostile to the defense in recent years and is certainly not perfect perfect, their approach ( See: https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_20071.pdf) normally limits the sentencing divergence to 30% and has other features worth considering, especially that in the UK the judge has a greater role in the plea process.

  • LawDog
    26 January 2016 at 10:07 pm - Reply

    Of course, the counter-argument is that if everyone demanded their right to a speedy trial, the system would collapse. The naked truth is that, as a society, we place so little importance on rights that we are unwilling to invest in a reasonable mechanism for vindicating them. And we all know at least one horror story.

    One case in CA comes to mind. A father was accused of throwing his 4-y.o. daughter off a seacliff to her death. The D.A. over-charged him with Murder One with special circumstances, claiming that he did it to evade child support.

    The pertinent facts are as follows: He was a baggage-handler at LAX, making roughly $50K. He had to pay (rough numbers) $10K/year in child support. Two years after the child’s death, he married an engineer making at least $150K/year, which raised their household income to over $200k/year. While 20% of your income can hurt if you’re only making $50K in L.A., 5% is not a burden so crushing that it would suffice as a motive for murder. But he was charged on information, and the judge rubber-stamped it

    On the face of it, it appears that the D.A. insisted on Murder One so that he could be held without bail. They also sent a SWAT team to arrest him in a state park, despite the fact that he didn’t even own a gun. This looked and smelled a bit like an attempt to intimidate him into a plea, but he insisted on his innocence.

    It took almost four years to being the case to trial the first time, while he was left in solitary to rot. He had some money, and hired Mark Geragos as counsel; the jury hung. The D.A. continued to press the case.

    Three years later, the case came up for retrial. Geragos turned the case over to an associate and once again, the jury hung. None of them voted for Murder One. But the D.A. continued to press the case.

    Over three years later — and more than a decade in the slam — the case came up for another retrial. At this point, he was defended by an overworked and incompetent P.D. (Geragos claimed that he has never abandoned a client, but he did there!), and they finally got a conviction.

    In pursuing this case to the ends of the Earth, the D.A. sent a clear and unequivocal message: “Assert your innocence at your peril!”

    • shg
      27 January 2016 at 5:48 am - Reply

      Yes, we all know one horror story (though some of us think far deeper than the silly “if everyone demanded their right to a speedy trial” solution. But then you go on, at length, to tell a story. If you want to be a pundit, start a blog and see if anyone gives a shit about your stories. Here, you’re just a commenter, and not a particularly fascinating one at.

  • There’s No Trial Tax; There’s A Plea Discount
    29 January 2016 at 7:05 am - Reply

    […] For example, Timothy Lynch has this piece in the Washington Post and my co-blogger, Noel Erinjeri, has this to say on the matter: […]