Saturday, February 16, 2019

The trial tax and Paul Manafort

I wrote an op-ed in The Hill this morning addressing the absurd trial penalty we have in our country.  Below is the introduction.  Please check it out and let me know your thoughts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.


Anonymous said...

At least he has a Pardon waiting for him.

Most defendants will be made bankrupt before the trial is even started.

Anonymous said...

Have a hard time feeling sorry for a guy like Manafort. Sure, first time offender he is...because it's the first time he got caught.

Anonymous said...

He wont get 20 years for the substantive crime or for going to trial; it will be for obstructing and lying after having tried to cut a deal. We all know that the Feds will take a bite out of the defendant for the crime, but chew him up if there is a lack of acceptance of responsibility and a demonstrable effort to obstruct and suborn--which is what he was caught doing. The reality is he expects a pardon, so he is playing with house money and could play risky knowing of that safety net.

Anonymous said...

Political bias is an amazing thing. Totally unsurprised our commenters suddenly are on team usa all of a sudden. Just waiting for someone to point out manafort is a white male to try to negate DOMs broader point about the criminal justice system.

Anonymous said...

Let me start with two quick disclaimers: 1) I'm a civil lawyer, and 2) I think that the sentencing system in general leads to unjust sentences.

That said, I don't understand the concept of the "trial tax." If I commit X crime, and the law says that the appropriate sentence, if convicted for X crime, is Y term of years; how is it a "trial tax" to be sentenced to that very same Y term of years after being convicted of X crime?

My clients frequently settle for less money than they think could get after success at trial because there is value in getting a lesser, but still reasonable, result without incurring the cost and uncertainty associated with trial.

Why should this be different in the criminal law context? Why does offering those accused of X crime a plea for Y/2 term of years if they forego trial constitute a "trial tax" on those who have not foregone a trial?

I understand that the sentencing guidelines are so out of whack with concepts of actual justice that an innocent person might be convinced to plead guilty to avoid the legal sentence for the crimes of which they are accused. But that's not a "trial tax," that's just bad law.

Anonymous said...

12:51. I agree with your point. One man's "trial tax" is another man's "acceptance discount." The fact that the Guidelines aim to give a just sentence for the crime committed, means that the latter view is more correct. Other than the recognition that pleading guilty mitigates the harm and admission is a step toward reform, the discount for guilty plea is just a payment made to an admitted criminal for saving society resources. It is in fact, less punishment than the theoretical defendant merits according to the USSG.

Defense attorneys and defendants will not see it this way though.

Anonymous said...

DOM, why are you always defending rich white men in your op-eds?

David Oscar Markus said...

The answer is based on a number of factors: charge bargaining, guideline bargaining, acceptance of responsibility points, and cooperation reductions. For example, a cooperator is permitted to plead to a lesser charge, not have certain enhancements apply, and then get additional and massive reductions for pleading and cooperating.

Anonymous said...

DOM, you are talking about the exceptional case. As a rule, cooperators plead to the top count charged. Also, many defendants who plead are able to negotiate away guideline adjustments, even if they do not cooperate. I have seen many a defense counsel argue that acceptance is a mitigation because it shows contrition and unlikelihood of reoffending. Do you disagree with this? The discount for plea also is a reward/incentive to defendants for saving justice resources (despite what you would have, trying cases consumes resources so the justice system offers a reward if a defendant is willing to give up his constitutional right to trial). Again, cooperation discount is what we as a society pay people to turn on their coconspirators. This all permits our criminal justice system to give those who want a trial a timely trial while giving those who wish to admit guilt an incentive for doing so and a reduced sentence. Does it create an incentive for innocent (or not as guilty as charged) defendants to plead guilty, yes. But if that's their decision with advise of counsel, what is society to do? Are we supposed to try every case (what's that going to cost?) or ignore the admission of guilt as a factor in sentencing?