Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain.
Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty.
Whoa. Before you rush to court to announce ready for trial, read Abrams’ piece. It’s short, but nonetheless headache inducing for lawyers who didn’t really enjoy statistics in college. To call the foundation for Abrams’ argument data is to stretch its meaning a bit too far. It’s a statistical approach, and empirical in that respect, but fails in the way that almost every attempt to compare apples to Fords fails.
Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.
In other words, Markel urges lawprofs to teach their students that the “conventional wisdom” of the trial penalty may not be true, and there may actually be a trial discount instead. Because law students already leave school with such a refined grasp of practice in the real world.
The universe of Abrams’ analysis, coming from Cook County, Illinois, includes dismissed cases, which he treats the same as acquittals after trial. Given the pyramid of prosecutions, with the bottom being overloaded with crap arrests of no merit, where defendants are arrested just to teach them the cost of the ride, if not the rap, and dismissed at arraignment or shortly thereafter, his data is so horribly skewed as to render the balance of his analysis meaningless.
In addition, Abrams neglects to account for pleas of convenience, where a defendant is held without the ability to make bail, facing a lengthy period of pre-trial custody followed by the uncertain outcome of a trial, and chooses to cop a plea that gets him out sooner rather than later regardless of guilt.
The issue of the trial penalty can’t be considered in the sanitized vacuum of statistical analysis, unless the real world influences that skew the results are taken into account, whether by eliminating them from the mix or somehow adjusting for the false result. The far better way to approach an effort to determine the existence of, and extent of, the trial tax (or discount) is to compare head to head, the plea offer made versus the sentence after trial.
Of course, given how few cases go to trial anymore, this would produce too small a universe to draw much of a conclusion. In addition, the study would then have to take into account additional factors, such as the nature of the crime, the quality of the evidence and the effectiveness of the representation. It’s not that it’s easy, or even possible to do so, but that if you want to claim that conventional wisdom is wrong, then you need to have the goods to do so.
While criminal defense lawyers’ experience is easy to dismiss as anecdotal, and suffers from the same flaws as all anecdotal evidence, it’s not as if there is any criminal defense lawyer anywhere who has ever said, “why no, there’s no trial tax in my experience.” That makes for a whole lot of anecdotal evidence, and indeed is the experience of every criminal defense lawyer everywhere.
It’s not that the rare case results in a sentence after trial below the plea offer. It’s happened to me, and no doubt has happened to many others. But this is the outlier. We go to trial when a case is winnable, meaning that we have some reasonable expectation that we can defend against the charges. When a defendant is dead in the water, the equation changes provided the plea offer isn’t unduly onerous.
But when faced with evidence where the defendant has little reasonable chance of prevailing and a plea offer below the mandatory minimum sentence available for a conviction, it’s hard to comprehend how this doesn’t constitute a trial tax. Years of a person’s life are real, not subject to statistical regression analysis. And no statistics will make the evidence go away.
Had Abrams attempted his study by limiting it only to indicted defendants, he might have latched onto something. Rid the study of the bottom of the pyramid, as they were never really in jeopardy to begin with, and focus instead on those whose cases are real and who are ultimately forced to make the decision whether to go to trial or take a plea.
In the meantime, this study is wholly unpersuasive, because of its failure to take into account the real world forces that drive the system, as well as the overwhelming anecdotal experience of every criminal defense lawyer ever. It’s nice to fall back on data and offer an empirical analysis that says everything we’ve ever believed is wrong, but this isn’t it.
On the other hand, there is a bone in my head that makes me want Abrams to be right, so that we can tell defendants to go to trial. But my duty to counsel clients truthfully precludes me from doing what would be better for me than for him.