There has been an increase lately in media attention regarding plea bargaining.  Well-meaning but often naive journalists and politicians, who lack a real understanding of how plea bargaining works or its benefits to all parties involved, have begun a crusade on behalf of criminal defendants to protest what has been termed the “trial tax.”  While I find it encouraging that so many people are concerned about the notion of justice towards those accused of crimes, the road to hell is often paved with good intentions and it is troubling that there is growing demand to diminish or abolish the single most effective tool in ensuring that defendants get a fair deal.

The trial tax is a euphemism for a judge imposing a more severe sentence on a defendant, in whole or in part, because the accused, who elected to reject the prosecution’s plea agreement and go to trial, wasted judicial and prosecutorial resources involved in a trial. 

It is certainly true that an individual who goes to trial and loses is apt to receive a harsher sentence than if he or she had taken a plea deal.  It is rare that a prosecutor does not offer any plea bargain throughout the course of a case and the whole point of a plea bargain is that a defendant receives some sort of tangible benefit for accepting responsibility without going through a trial.

But I have never understood why people characterize the harsher post-trial sentence as a “tax.”  And I think that the focus on the negative of the post-trial sentence as opposed to the positive of a reduced plea-bargained sentence is misplaced.

There are two basic ways that plea bargaining can help a defendant, by lowering the sentence if the defendant pleads to the charges as they are filed or by reducing the actual charge (which will almost necessarily lower the sentence as well).  Here is the basic argument by way of an example.  Let’s assume that a person jumps a subway turnstile in New York City to gain access to the subway system without paying the fare.  This is Theft of Services, a class A misdemeanor, and is punishable by up to one year in jail.  All class A misdemeanors in New York State carry that same one year maximum possible punishment.  There is no minimum.  The bounds of the punishment are established by the New York State legislature, so any punishment between “time served” (which means the sentence is the amount of time the person has already spent in custody during the arrest process, and is therefore immediately released and free to go and the case is over) and a full year in jail is legally acceptable.  In between these two boundaries is also lower charge (disorderly conduct for example), community service, probation, programs like anger management, and a slew of other options.  Further, the prosecutor can offer to fully dismiss the charges either with or without certain conditions that the defendant has to fulfill by a certain prescribed deadline.

In our example, the first possible scenario is that the prosecutor offers the defendant a plea bargain and conveys that, in return for a plea of guilty to Theft of Services, the prosecutor will recommend that the judge impose a sentence of probation as opposed to jail time.  If the defendant chooses to plead guilty, that is how the case will resolve.  The prosecutor will not have to spend any additional time getting the case ready for trial, the judge will be able to clear the case off the judicial calendar and the defendant will know exactly what the sentence will be before ever admitting guilt and will have agreed to accept it.  These are benefits for everyone involved.  

The second possible scenario for plea bargaining is that the prosecutor offers to reduce the charge from Theft of Services to something lower, like Disorderly Conduct, with a non-jail alternative like a few days of community service.  This can be done either as a recognition that the defendant does not have any serious criminal activity in their background or that the harm suffered by the community for jumping a turnstile does not warrant the possible imposition of up to one year in jail.  

In either case, if the defendant elects not to plead guilty and goes to trial, is convicted, and is subsequently sentenced by the judge to 10 days jail, this is not a tax placed on the defendant.

Let’s be clear, imposition of a sentence is not reflective of an actual legal penalty for exercising a right to go to trial.  It merely shows what this particular judge felt the appropriate penalty was for Theft of Services under the facts and circumstances of this particular case.  Judges weigh a lot of factors when determining sentencing, just as prosecutors weigh a lot of factors when determining a plea offer.  

It’s a bit confounding that anyone would seriously offer the argument that a person who goes to trial and loses should receive the same punishment that he or she spurned in the decision to go to trial.  It is antithetical to the whole theory of negotiation and bargaining if the end result is the same regardless of plea or trial.  There is then no incentive to ever plead guilty as you are simply accepting a punishment that there is always a chance you may escape by being acquitted at trial.  The whole point of the plea bargaining system is that a defendant is induced to plead guilty by exchanging the risk/reward of a trial for a guaranteed lower penalty.

There is an important distinction between a defendant pleading guilty after considering the potential maximum incarceration period, and pleading guilty because a judge will consider what he or she thinks is an appropriate punishment, and then increase it based on the fact that a trial took place.  The potential maximum penalty is certainly a factor which a defendant should take into account.  It would be malpractice for an attorney not to discuss what the potential sentence would be if a defendant was convicted at trial.  But that is a completely separate argument from the position that judges impose a trial tax.

It is entirely possible that there are some individual judges out there who punish a defendant for going to trial.  Judges are humans and, while we typically hold them to a higher standard than the average person, are not immune to whim and caprice.  But criminal judges typically understand and appreciate the awesome responsibility which comes with their office, and impose sentences that take into account the myriad factors which should comprise a sentencing decision.  I have known many judges, both as a prosecutor and as a defense attorney, and have never known any who I believe imposed a trial tax as opposed to imposing a sentence based on their perception of the facts and circumstances of the case itself.

Accordingly, plea bargaining typically represents a way for defendants to get a benefit, rather than be subjected to some sort of abstract enhanced punishment for exercising the right to go to trial.  

Alternatively, people have argued that the high percentage of plea bargaining is indicative that prosecutors strong arm defendants into taking pleas.  To be clear, in very limited circumstances that certainly does happen.  But by and large, that is an exception to the general rule of the practice.  Prosecutors rarely use tactics such as threatening to indict a defendant’s family members if he or she does not plead guilty.  Despite the trend of skepticism towards law enforcement that has become a significant part of our current culture, most prosecutors are honorable and ethical people who genuinely want to achieve a just result in their case.  

Prosecutors who seek convictions at any cost definitely exist, and I have discussed the danger they pose on the podcast at various times.  Their positions of power are certainly problematic and they have the ability to wreak significant havoc if so inclined, but it is important to separate the issue they pose from the proposed solution and think about the two critically.  The answer to unethical prosecutors is not to deprive every criminal defendant of the choice to obtain a benefit for accepting responsibility.

The fact that pleas account for well over 90% of prosecutions is not per se evidence that the system is broken.  It is reflective of the fact that defense attorneys and defendants are having serious discussions about the evidence in their cases, that prosecutors typically make fair offers to resolve cases, and that the legislature’s determination of the possible incarceration periods for many levels of conviction is too high.  

Abolishing or severely limiting the use of plea bargaining would have catastrophic results for everyone involved.  It would erase the ability for courts to clear up their dockets and calendars, causing massive backlogs.  It would have the same effect on prosecutors and defense attorneys, who may be hamstrung from resolving cases in ways that both sides feel is a fair and just outcome.  But mostly it would irreparably damage defendants, who may be ready to jump at the possibility of getting a reduced charge/reduced sentence for accepting responsibility and agreeing to certain conditions.  Plea bargaining is an essential feature of the criminal justice system and, more than any other aspect of the institution, provides for the fair and efficient administration of justice.

By: Paul Townsend