The decades-old trial penalty in New York State threatens constitutional rights, limits law enforcement transparency, and weakens the integrity of the justice system, says a report released Friday by the New York State Association of Criminal Defense Lawyers (NYSACDL) and the National Association of Criminal Defense Lawyers.
The report, the first ever to look at the long-term impact of the trial penalty in New York, included statistical analysis of the prevalence of the trial penalty, personal stories demonstrating how the issue impacts all New Yorkers by effectively removing a critical check on the state’s justice system, and recommendations for how policymakers and prosecutors can reverse this trend and protect constitutional rights.
Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined.
As of 2019, 96 percent of felony convictions and 99 percent of misdemeanor convictions in New York State were the result of guilty pleas, described as “a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries.”
One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea.
The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.
The report, The New York State Trial Penalty: The Constitutional Right to Trial Under Attack, conducted a survey of criminal justice practitioners across the state. More than 300 criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand.
Key findings include:
- 94 percent of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights—in 66 percent of cases sampled, defendants experienced a trial penalty.
- The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
- The trial penalty is driven by a broad range of different factors—including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums—and therefore requires a broad range of solutions to overcome.
“This report makes absolutely clear the trial penalty has metastasized in the system well beyond individual punishment. It is a threat to our constitutional rights and simultaneously allows—even encourages—the abuse of power by prosecutors and judges and too often buries police misconduct which never sees the disinfecting light of a courtroom,” said Susan Walsh, Trial Penalty Project Chair at NYSACDL.
“Policymakers must recognize the devastation the trial penalty has caused in New York and take steps to reform the system,” said Walsh. “Some changes, like collecting data to further study the problem, are simple. Others, like providing greater sentencing flexibility and opportunities to revisit excessive sentences may be more complex. But we must resist the systematic assault on the fundamental right to a trial.”