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Plea deals and the trial penalty: Part I

Under the Sixth Amendment, anyone facing criminal charges is guaranteed the right to a public trial by a jury of their peers. And if you were to believe the crime dramas you see on TV, trials are the most common way to resolve criminal charges.

But that's not actually the case. In federal court, for instance, about 97 percent of criminal charges are resolved through plea deals. In state courts around the country, numbers are similar. The fact is that the vast majority of criminal cases will never make it to trial. Why is this? And does the criminal justice system's reliance on plea bargaining ultimately hurt defendants?

Plea bargaining does save substantial time and money for the court system, but that is a practical matter. It has no bearing on whether a largely plea-based system is considered "just."

Instead, we need to be concerned about the rights of the accused. And unfortunately, many defendants have been overcharged, over-penalized and sometimes falsely convicted because of the imbalanced amount of power that prosecutors have.

The trial penalty and mandatory minimums

Why do so many defendants opt for a plea deal instead of taking their case to trial? Sadly, the answer is coercion. Prosecutors largely get to choose the specific charges defendants will face, and, in doing so, what their likely sentences will be if convicted.

The "trial penalty" often works like this: A prosecutor tells a defendant that if they agree to plead guilty, the prosecution will seek a reasonable sentence (although reasonable is very relative). If, however, they choose to take the case to trial, the prosecution will seek the most serious charges possible and pursue the harshest sentences available. This includes the use of sentence enhancements, including mandatory minimums and sentence multipliers based on a defendant's previous convictions.

Naturally, many defendants feel that they have to take a plea deal, because the risks of going to trial and losing are simply too great. Although this is a "deal" in the technical sense, it feels much more like coercion in many cases.

In fact, it can lead some completely innocent defendants to falsely confess to serious crimes. Please check back later this week as we continue our discussion.

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