Sentencings

I've often written about how our criminal justice system coerces pleas.  One of the reasons is the trial tax.  If you go to trial and lose, your sentence is likely to be many many times the plea offer -- sometimes more than a decade longer.  It's unjust.

Because there were almost no trials during the pandemic, and many judges were more compassionate during that time (it’s all relative), it was easy to forget about the awful trial tax in our system.

But recent sentences in our District and others are showing that there is absolutely no let up for the trial tax -- even for non-violent offenders. Most judges, who have never represented a criminal defendant, have no sense what a 5 *year* sentence does to a person, a family, a community. It’s completely devastating. 

One possible solution -- at a sentencing post-trial, judges should be told what the plea offer was.  If a plea offer was X, the government shouldn't be asking for 4X. 

Since COVID, prosecutors have also candidly told me that they are now asking for much higher than they believe is appropriate at all sentencings because they believe that most judges will vary down from their recommendation.  The typical scenario is that a prosecutor believes that a sentence of 10 years is warranted.  The defense believes 3 years is right.  The prosecutor knows that if both sides ask for those sentences, a judge is likely to give 5-6 years, so the prosecutor asks for 12 or 15 years in the hopes of getting 10.  Judges then feel like they didn't give the prosecutor everything they asked for, when they actually did just that.  

Anyway, that's my Sunday morning rant.  Sentences are on the uptick again post-COVID.  Incarceration rates are moving higher again.  While COVID remains, the compassion during the pandemic seems to be fleeting.