When University of Pennsylvania lawprof David Abrams announced his research, it made news. After all, it purported to be an empirical study that contradicted not only the accepted wisdom, but the experience of every criminal defense lawyer ever. The trial tax was a myth.
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. the data supports the view that in fact there’s a trial discount not a trial penalty.
Surprising isn’t the word for it. Shocking? Stunning? Astounding? How about wrong?
Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than “penalizing” those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.
Abrams was wrong, and he’s not the only one.
The most significant aspect of the adoration of empiricism is that data displaces deeply-held beliefs. It doesn’t matter if everybody says so. What matters is what the data says, and at its core is empirical evidence showing that everybody has been wrong all along. Data. It’s a thing.
Except that the experience in the trenches, case by case, defendant by defendant, was not just the opposite, but overwhelming so. And indeed, this was a primary driver of federal pleas, the fact that a defendant who wanted to put the government to its burden of proof would, if he lost, pay dearly for doing so. Have criminal defense lawyers been advising their clients falsely all these years? Have we assumed the “common wisdom” to our clients’ detriment?
No. Of course not.
My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study. 84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy “penalty” indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial.
Assuming you just skipped over the quote, here’s the TL:dr: Not only is there a trial tax, but the trial tax is a 64% longer sentence. This is likely far more than anyone would have realized. Yeah, data is a thing.
Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.
This is a critical point, one that impacts not only the advice of criminal defense lawyers, and the choices made by defendants, but the perspective of federal judges, legislators and those cool guys in the Department of Justice. The price of challenging the government’s might is a 64% longer sentence. Innocent? 64%. Overcharged? 64%. Guilty, but with explanation? 64%. Constitutional rights violated along the way? Still 64%.
Not that all defendants (or their lawyers) are invariably rational beings, but as Andrew Kim makes abundantly clear, rolling the dice with the likelihood of a penalty of a 64% longer sentence is just plain nuts.
Kim goes on to explain his empirical methodology, together with the failings of Abrams’ statistical analysis. If that’s your thing, it’s fascinating. It’s not mine.
Kim also notes the limitations of his own analysis, that it’s impossible to take into account all the underlying bargaining, such as charge bargaining (which is where the prosecutor threatens to add additional or higher level charges to the indictment if a defendant doesn’t cop a plea, thus making the situation worse than it would appear at the time negotiations occur). But this gap would add to the 64% trial tax, not reduce it.
While judges complain that nobody goes to trial anymore, and that prosecutors control the sentence to be imposed through charging decisions, this outrageously high penalty for exercising the constitutional right to go to trial raises some serious questions about the role judges play in this fiasco. Not every crime has a mandatory minimum, and post-Booker, judges have far more sentencing discretion than ever over the decades when the Supreme Court let us be confused about the Guidelines.
So why are you pounding defendants with a penalty like this for taking a case to trial, judges? Why do you hate constitutional rights so much?
And still, there’s a deeply insidious problem lurking behind the numbers. If these plea bargains, without the 64% trial tax, are sufficient as far as the government is concerned to satisfy the legitimate purposes of sentencing, and they must be unless the government is in the business of setting criminals free to prey upon society, then how could there be any justification to add an additional 64% punishment on top of sentences that already fulfill the purposes of § 3553(a)?
In other words, we’ve all been scammed by sentences that are not merely Draconian, but unlawful according to the purposes Congress and the Supreme Court say must apply. If 60 months will do, then 121 fails. You can’t have it both ways, no matter what the government says in its sentencing memo.
It’s time to shake off the life plus cancer sentences, and start recognizing that the government might be the one selling the lie, but the courts have been running the cash register.