Combatting the ‘Trial Penalty’

Because of tough sentencing laws enacted by Congress beginning in the 1980s. Mandatory minimum sentences, sentencing guidelines and other provisions have greatly increased defendants’ potential exposure to long sentences, if convicted by a jury.

In practice, the result is a “trial penalty,” many defenders say. Clients often plead guilty, even when they might have a winnable case, in exchange for avoiding charges that carry enhanced sentences. In recent years, about 97 percent of all federal criminal defendants have pleaded guilty, compared with 81 percent in 1980.

In a 2013 Yale Law Review article, David Patton, chief defender in the office that represents the Southern and Eastern Districts of New York, said the sentencing laws have created harsher outcomes today than in Gideon’s time, despite far superior courtroom representation.

“You can have all the commitment to social justice, but if you don’t enjoy a fight, if you can’t take a punch, you won’t last.”

“I think the Criminal Justice Act is one of the greatest pieces of legislation ever when it comes to the federal criminal justice system,” Patton said. “But when a client today decides whether to challenge the government’s version of events, he faces the daunting prospect of five, ten, or twenty additional years in prison in exchange for exercising his right to a hearing or trial. The choice weighs heavily in favor of folding without a fight.”

The Judicial Conference has long opposed mandatory-minimum sentencing, and efforts to reduce federal criminal sentencing have won significant support in Congress and from the Executive Branch.

The Defenders Services program also works to even the courtroom odds through continuing education and training for defenders and panel attorneys.

The National Litigation Support Team provides guidance on electronic discovery and complex cases, particularly in the areas of evidence organization, document management and trial presentation. The Death Penalty Resource Counsel Project, founded in 1992, provides information and expert lawyers to assist on complex capital cases.

Chip Frensley, chief of a group of panel attorney district representatives who advise the Defender Services Office, said defender trainings have strengthened the quality of representation by court-appointed lawyers, as has local screening of new hourly attorneys. Frensley, of Nashville, Tenn., said inclusion on the attorney panels is seen by many lawyers as an honor.

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