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Why should sentences after trials be longer than pled sentences?

In the criminal justice world, there is something we refer to as the "trial penalty." It is a penalty, in the form of a harsher sentence, for anyone who demands a trial and is then found guilty. In almost every case, defendants convicted at trial are sentenced to far longer than people who accept plea bargains.

It's reasonable, from the prosecution's point of view. Court and prosecution resources are limited, so an incentive for pleading guilty is needed. Just plead guilty -- don't make us go to the trouble and expense of a trial and we'll cut you a break, the prosecution argues.

But if we think certain crimes deserve specific punishments that don't vary by defendant, why should a defendant get a harsher punishment simply because he or she claims to be innocent? After all, the constitution says that defendants are under no obligation to prove their innocence. They are entitled to ask the prosecution to prove every element of the case against them. Don't people have a constitutional right to be tried?

The pressure to accept a plea bargain is immense, even for innocent people. According to a recent report by the National Association of Criminal Defense Lawyers (NACDL), 30 years ago, about 20 percent of criminal defendants chose trial. Today, only 3 percent do so.

Prosecutors routinely make a point of the trial penalty, threatening to stack on additional charges, often with high mandatory minimum sentences. Many people are lured by promises of a minimal sentence and plead guilty regardless of whether they actually are. This is even more likely to happen among the poor, who typically can't afford bail and are stuck behind bars from the time of their arrest to the resolution of their case.

What makes it even more tempting to plead guilty is that defendants often don't know how strong the case against them may be. While prosecutors do have to hand over their evidence to defense attorneys, they only have to do so on the eve of trial -- long after the plea offer has expired.

Are people really pleading guilty to crimes they didn't commit in order to avoid the "trial penalty"? A recent study by a University of Pennsylvania criminologist found that 6 percent of state prisoners in Pennsylvania reported being wrongfully convicted. Past numbers focusing on DNA exonerations estimated that 3 to 5 percent of those convicted of murder and rape are wrongfully convicted.

Unfortunately, criminal convictions have negative consequences that can follow people for decades. They can negatively affect job, education and housing prospects and make it more likely that the person will become further involved in the criminal justice system.

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