There’s No Trial Tax; There’s A Plea Discount
Jan. 29, 2016 (Mimesis Law) — The supposed horror of the so-called “trial tax” has become the hot topic (again). The idea is that defendants who insist on a trial end up with higher sentences than those who accept a plea deal. This notion of a trial tax is accompanied by much hand-wringing about how defendants are “forced” to accept these “unfair” deals.
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.
This frames the issue of the utility of plea deals backwards. Framing it this way is like walking up to an elephant’s rear and wondering why it eats with its anus. The defendant is facing a prison term not due to an assertion of innocence but rather being charged with a felony. It should come as no surprise then that the commission of a felony normally results in prison time.
Consider the case of the armed robber caught on film, positively identified with the clerk, and caught nearby in a car matching the one seen on film and identified by the clerk, with the firearm, cash, and plastic bag from the store. Here in Ohio, the defendant would likely face a sentence in the range from two to eight years.
So, in this example, you have a defendant whose guilt is beyond a reasonable doubt facing an uncertain sentence that must fall within in a large range. In such a case, it’s in the defendant’s self-interest to minimize the top-end of prison exposure. (“Do the crime, do the time” is replaced with “did the crime, but get less time.”) Thus, when the defendant readily acknowledges guilt, the defendant gets a plea discount–not a trial tax. The defendant is gaining a benefit through reduced prison term exposure. Such a defendant is not suffering a real loss, which is why it’s not a true penalty but rather a discount.
While there are perhaps some systematic concerns to plea bargaining, in all cases (save actual innocence) individual defendants are usually better off pleading than facing the statutory maximum. (More on that below.) The only way guilty defendants would come out better is if they risk trial and wrongly get acquitted. So, it’s baffling that many folks who think the result of the criminal justice system is too harsh on defendants argue for eliminating the best method for ameliorating that harshness.
Besides the benefit defendants individually receive, there is reason to doubt that plea bargaining is the cause of anything deleterious. At its most basic, the “trial tax” framing suffers from an inability to prove that the causation arrow runs in that direction, i.e. defendants are suffering a penalty for exercising their rights to trial rather than as a consequence of their own criminal conduct.
Over at Simple Justice, Scott Greenfield discussed the study showing defendants in federal cases received 64% higher sentences in tried cases than pleaded cases. But there is no evidence showing that rejecting a plea caused a greater sentence to be imposed. In other words, those “higher” sentences more likely reflect the true (non-discounted) sentence that a judge would typically impose.
This is in contrast to the judge adding extra time onto a sentence that would have been otherwise imposed solely because the defendant insisted on a trial. In a way this happens in the federal system when defendants forego the acceptance of responsibility reduction by going to trial. In fact, the study concludes that in most cases it is indeed better to accept a plea deal than go to trial.
If guilty people are indeed spending too much time in prison, then that is an issue the legislators should resolve with the sentencing scheme. It’s not a problem that results from plea bargaining. Now, the same study raises the specter of innocent people facing such a certainty of conviction that they will plead rather than risk a trial. Lynch’s article is focused on this too:
To protect the innocent, however, the law demands that incriminating evidence be presented in court. The Constitution says every person accused of a crime has the right to an impartial jury trial. If the jury is persuaded that a person is guilty, then that person can lose his liberty and be punished. That is a sensible procedure for a just system, and it is why Americans have taken pride in our Bill of Rights.
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.
These arguments make a critical and quite likely flawed assumption—the trial process will always vindicate the innocent. I can tell you from first-hand experience, trials do not always vindicate innocent people. If an innocent person would be likely unable to avoid conviction, then that is due to other systematic failures—again, not because of plea bargaining.
But don’t take my word for it. The Innocence Project has exonerated 325 wrongly convicted people by way of DNA. This study by Professor Zalman estimates thousands of people are wrongfully convicted each year. Regardless of whether his estimates are correct, his study and the Innocence Project strongly suggest that abolishing plea bargaining would not avoid wrongful convictions. While we might know about less of those wrongful convictions because of circumscribed appellate rights, but that would not affect the conviction rate.
It might strike you as odd that a prosecutor would point out that folks do occasionally get wrongfully convicted. But it’s important to point that out here to blunt the loudest objection to plea bargaining, which is the horror of a wrongful conviction. To be sure, it’s unjust and accordingly it’s the argument with the greatest emotional resonance. Certainly reducing (and hopefully eliminating) wrongful convictions is a righteous goal, but blaming plea bargaining for them is a distraction to eliminating the true causes of wrongful convictions.
So, if you’re unhappy with mandatory minimums, broadly written criminal statutes, high top-end sentencing ranges, poor quality evidence being admissible, not enough mitigation is permitted in sentencing, or the like, then reforming plea bargaining won’t achieve anything other than defendants serving longer sentences. And unless I misread the concern here, that seems like a result opposite to what is desired. If anything, prosecutors are unwitting allies here because through plea bargains, defendants get more mercy than they would from the sentencing judge.
Even if Zalman’s very high 3% estimate is correct, that means in 97% of cases defendants are guilty and justly convicted. In 97% of those cases, the defendant is almost certainly better off than if they went to trial.
Defendants should be thankful for the plea discount; otherwise, they’d routinely face even higher sentences at the end of trials.