As the discussion about whether criminal defense lawyers should promote their clients going to trial or taking a plea continues to flow across the practical blawgosphere, with Kennedy and Fredericks joining Bennett, Bennett and Tannebaum in the debate, Matt Brown, the Desert Scorpion, of Chandler Criminal Defense adds a new wrinkle to the discussion.

I think a lot of defense attorneys are plea mills. Those attorneys definitely need to try more cases. However, trial is often too risky an option for many clients to seriously consider. I can’t blame them.

Exercising my authority to liberally reinterpret Matt’s point, the equation undergoes a marked shift relative to the disparity between the sentence a defendant will receive under a plea, versus the sentencing likely to be imposed after trial.  It’s the sentencing lottery, trading off a known outcome for an unknown, but one  which will exact a huge price for entering.  Lose after trial and suffer a sentence that may be multiples of the sentence offered in advance.

This raises a very important point to be considered when determining whether to go to trial: Are you prepared to face the trial penalty?

Theoretically, a person should not be penalized for the exercise of a constitutional right, for to do so would be to undermine and negate the existence of that right.  But how then can one explain why the same person, whose alleged criminal conduct is well known to prosecutor and judge alike in advance of trial, is offered a sentence of 5 years (for example) before trial, but should he lose at trial, will be sentenced to 20 years?  The only intervening event is a trial, a right guaranteed by the 8th Amendment to the Constitution.  The defendant has done nothing more than fulfill his duty as an American by putting the government to its proof.

The rationalization flips the relative arguments upside down.  Instead of recognizing the post-trial sentence as a penalty for the exercise of a constitutional right, the pre-trial sentence is deemed a “bonus” for having saved the government the time, money and risk of going through a trial.  In other words, we don’t penalize a defendant for going to trial, but give him a benefit for not going to trial.  Sophistry at its best.

What often goes unnoticed about this equation, plea offer versus post-trial sentence, is its impact on the legitimacy of sentencing itself.  If, and it’s a big if, the factors that justify the imposition of a sentence serve to legitimately justify the loss of freedom, or worse, of a person for the acts committed, why are these same purposes not equally important in advance of trial as afterward?

What this tells us is that the efficacy of sentencing, based upon the sentence to be imposed under a plea offer, reflects all that is needed to satisfy the legitimate purposes of a sentence.  After all, the crime itself is wholly unaffected by the fact of a guilty plea as opposed to a guilty verdict.  The only difference is that a trial occurred in between, and that has no bearing on any of the purposes justifying the imposition of sentencing.  If the crime was bad after trial, it was bad before.  If the defendant was evil after trial, he was evil before.  If the defendant poses a danger to the community, trial certainly doesn’t make him more or less dangerous.

This demonstrates that our system imposes a very hefty penalty on the defendant who seeks to put the government to its proof, with no cognizable purpose other than to dissuade a defendant from doing so.  The sad fact is that many defendant, indeed most, will decide against “rolling the dice” by going to trial, even though they may be innocent or have a good defense, because of the enormous cost of losing.  Twenty years in prison may not have much of an impact on the decision to engage in criminal conduct, but it can have an awfully big impact on the decision to take a case to trial.

This is of utmost concern when the defendant is innocent, or overcharged.  It may be bad enough for the innocent defendant to find himself in the position of facing prison for something he didn’t do, but to face an even longer stretch, multiplying bad to unbelievably horrible, for something he didn’t do is unfathomable to many people.  Thus, the innocent, whose faith in the system is usually slim to none by dint of being in the position of being falsely accused in the first place, wants nothing to do with trust, faith and principle, and wants only to get back to his family as quickly as possible.  The idea of taking a chance at winning, versus never seeing his children again without thick plexiglass in front of his face, is too much to take.

Systemically, courts cannot admit that there is such a thing as the trial penalty, for to do so would be to concede that the system is inherently wrong and, indeed, unconstitutional.  But as we all know, it’s real, it’s there and it’s a possibly the most significant part of the discussion between lawyer and client about whether to plead guilty or go to trial.  So when our “tough on crime” politicians and their supporters demand ever-increasing sentences of incarceration, it would behoove them to consider that these aren’t really the sentences that judges are expected to impose, despite all the ugly rhetoric about how we need to lock people away forever to protect ourselves and our children.  Rather, the top sentence is the wedge to be used to strike fear in the hearts of defendant, guilty and innocent alike, to forgo the exercise of their right to trial and, should they lose, be compelled to pay the trial penalty.

As for the demand for retribution and the need for deterrence (forget rehabilitation, as that went out with flower power), it should be remembered that 97% of all defendants cop a plea and obtain the benefit of doing so, never receiving that sentence we are told is absolutely necessary for the continued existence of humanity and the perpetuation of the Union.

And the person for whom this Hobson’s choice is most likely to apply is, of course, the innocent.  Factor that into the decision and see how comfortable you are with advising a defendant to take a plea.

Update:  As raised by our Hinterlands correspondent, Kathleen, and showing a fortuitous symmetry, two of today’s posts meld perfectly as shown in the Vermont Supreme Court’s decision in State v. Brillon :

During the pendency of this appeal, the State agreed to a reduced sentence if defendant dropped his appeal, but, on remand, the district court refused to accept the stipulated settlement.  We now hold that the convictions must be vacated and the charges against defendant dismissed because he was not prosecuted in a timely manner.

So Brillon was so very evil, yet not so evil that the State of Vermont wasn’t prepared to overlook the extent of his crimes if he would only drop his appeal?  Yet again, integrity takes a back seat to expediency, all the while heated rhetoric whips the public into a frenzy in the need to make punishments increasingly more severe.