We all know it exists everywhere, but NACDL is doing a nice job exposing the trial penalty. Here's the latest report about the penalty in New York. It has 15 recommendations. Here are the first 3:
- Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
- Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
- Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.
So are you also against the acceptance of responsibility credit? Because one man's trial penalty, is another man's guilty plea discount.
ReplyDeleteThe focus should be in what is the right, just sentence for the criminal conduct of the defendant proven in court. That should be the sentence if the guilt has to be proven in court in a trial, with mitigating and aggravating circumstances considered. Isn't that what the guidelines aim to do?
As recognized in the guidelines, the defendant who pleads guilty gets a discount on the logic that s/he saves resources, takes a step toward rehabilitation, and gives up trial rights. Thus, the guilty plea discount is the consideration society pays to the defendant for giving up his rights and saving society resources. Defendants who do not give up their rights and the trial they are entitled to, do not get the discount. Based on this, isn't the more correct view that what you call a "trial penalty" is actually the absence of the guilty plea discount. Because if it is not, then how does the acceptance credit not penalize defendants who go to trial?