Public Service Announcement: NACDL Needs Examples of “Trial Penalty” Cases

February 4, 2015

By: Sara Kropf

I promise a real post later this week (isn’t the anticipation killing you?), but, meanwhile, NACDL is looking for examples of cases involving a “trial penalty.”

For those of you who are unfamiliar with the term, a “trial penalty” is the price our clients pay for choosing to fight charges against them rather than immediately capitulate in a plea deal. For exercising their constitutional rights–and forcing the government to meet its burden of proof at trial–our clients routinely pay the price of a longer sentence in prison if they are found guilty.

In December 2013, Human Rights Watch issued a report about this topic in relation to drug cases. I can’t vouch for the numbers, but the report concludes that

Federal drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain

Scott Greenfield has written about it. Matt Kaiser too.

As NACDL puts it, a trial penalty is

the outrageous tax that is imposed upon the accused who dares to seek a trial.

The trial penalty is a product of many factors that imbue prosecutors with virtually unbridled authority to punish criminal defendants disproportionately simply for exercising a fundamental constitutional right.

It stems from prosecutorial control over the charging function — the ability to add, increase and stack multiple counts that may be applicable to a single criminal act or enterprise.

NACDL points to the “vast array of tools” that allow the government to increase the possible penalty faced by our clients at every stage of the proceeding:

  • the ubiquitous availability of mandatory minimums and enhancements;
  • the option to introduce extraneous evidence to poison the court and invoke additional penalty triggers;
  • the confidence that courts will sentence slavishly tethered to guidelines — even after they have been declared advisory;
  • the calculated use of undercover agents and cooperating witnesses to artfully manipulate a target into deeper criminal exposure; and
  • the nearly limitless use of cooperators and informants who are themselves induced by the trial penalty to exaggerate and even fabricate evidence incriminating to an accused person who asserts the right to a trial.

This just isn’t right. NACDL’s Vice President, Barry Pollack (a great guy, by the way), announced the creation of a trial penalty project last year to study this phenomenon across the criminal justice system.

It is an important project. It needs our help. If you have an example of a case where a trial penalty was imposed, you can send it to You do not need to identify the client by name.

More information can be found on NACDL’s website.

We now return to our regularly-scheduled programming.

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Whether you need to take a case to trial, negotiate a resolution without ever setting foot in the courtroom, or navigate a complex public relations problem, we can help. View all posts by Kropf Moseley.