The New York State Trial Penalty: The Constitutional Right to Trial Under Attack

Criminal defendants receive a “trial penalty” in the form of severely-enhanced sentences when they contest the charges against them or litigate the legality of evidence instead of merely pleading guilty. Ninety-four percent of the three hundred New York criminal defense attorneys surveyed agreed that a trial penalty exists and impacts justice in their counties. Guilty pleas foreclose litigation, allowing prosecutors to avoid proving their case and preventing defendants from exposing unlawful government or police action at trial or through motion practice. Numerous factors perseverate the trial penalty in New York. Prosecutors use aggressive charges, contingent plea offers, waivers of pretrial rights, late or incomplete discovery, and harsh sentences to leverage guilty pleas. Though they are allowed to intervene directly in plea negotiations between prosecutors and defendants to induce fairer outcomes, judges rarely do so and instead approve prosecutors’ decisions. Sentencing laws—from high mandatory minimums to mandatory sentencing enhancements for multiple offenses—discourage defendants from going to trial even on weak cases. Lastly, excessive caseloads put pressure on judges, prosecutors, and defense attorneys to encourage pleas to avoid the time and resources necessary for trial. The Task Force reviewing the survey data developed a set of ten principles and fifteen policy recommendations to mitigate the effect of the trial penalty and restore the trial’s central role in New York’s criminal justice system.

“Judges’ rightful concern that every case be heard and a woeful underfunding of the defense function have transformed many courts into guilty plea conveyor belts. While there is no doubt some value in promoting efficiency and early case disposition, it is a great concern when that objective overtakes the larger purposes of the justice system. When punishment is significantly enhanced merely because an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice.” p. 4