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The New York State Trial Penalty: The Constitutional Right to Trial Under Attack

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system. [NYSACDL & NACDL] [Released March 2021]

Documents

  • Download the Report (pdf)


Cover for NACDL report The New York State Trial Penalty: The Constitutional Right to Trial Under AttackOn March 26, 2021, NYSACDL and NACDL released this critically important report on the trial penalty in the New York State criminal legal system. This is the first-ever report on the decades-long impact of the trial penalty in New York State. It includes 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 principles and recommendations for how policymakers and prosecutors can reverse this trend and protect New Yorkers’ constitutional rights.

Learn more about the trial penalty

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% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — 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.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Media Coverage

  • New Study Criticizes Courts For "Penalizing" Those Who Refuse To Plead Guilty, by George Joseph, WNYC, March 25, 2021
  • Defendants Who Refuse Plea Deals Often Get Tougher Sentences. Will The Next Manhattan DA End That?, by George Joseph, Gothamist, March 26, 2021
  • Plea Bargaining ‘Weakens Integrity’ of Judicial Process: Report, by TCR Staff, The Crime Report, March 26, 2021
  • "The New York State Trial Penalty: The Constitutional Right to Trial Under Attack," Sentencing Law & Policy Blog, March 26, 2021
  • New York Playbook PM, by Anna Gronewold and DAvid Giambusso, New York Politico Playbook, March 26, 2021
  • City & State First Read Tonight, by Annie McDonough, City & State, March 26, 2021
  • 'Coercive' Prosecution Drives Trial Penalty, Defense Attys Say, by Marco Poggio, Law360, March 30, 2021
  • The Marshall Project Opening Statement, by Andrew Cohen, March 31, 2021
  • Scathing Report Faults Rockland DA In 2012 Gas Explosion Case, by Lanning Taliaferro, Patch, April 1, 2021
  • Study Finds Right to Trial Under Attack; Defense Lawyers Seek Way to End ‘Trial Penalty’ in NY State, by Ned Meiners, Davis Vanguard, April 3, 2021
  • Opinion: How the trial penalty drives injustice, by Susan J. Walsh and Norman L. Reimer, New York Daily News, April 6, 2021
  • When Going To Trial Isn’t Worth It, by Toni Messina, Above the Law, April 15, 2021
  • Memo to Joe Biden: Add a Civilian Justice Corps to Your ‘New Deal’, by James Doyle, The Crime Report, April 16, 2021
  • Lawmakers have a chance to eradicate the trial penalty, by Susan J. Walsh and Norman L. Reimer, Albany Times Union, May 31, 2021
  • Candidates for Manhattan District Attorney on Ending the 'Trial Penalty', by Anna Kaufman, Gotham Gazette, June 16, 2021
  • Fixing Rikers requires hard work: Eradicate the trial penalty, by Martín Antonio Sabelli and Susan J. Walsh, New York Daily News, October 16, 2021
  • Majority of New Yorkers support package of bills to end wrongful convictions, by Dennis Slattery, New York Daily News, May 3, 2022

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Strengthening the Sixth

The Center for Justice Innovation is a training and technical assistance provider to the Bureau of Justice Assistance through the Justice for All program. The Center for Justice Innovation (the Center) and its partner are managing, enhancing, and expanding the Strengthening the Sixth website. For more information about the Center, visit www.innovatingjustice.org. The Strengthening the Sixth Website is supported by Grant No. 15PBJA-22-GK-01567-JAGJ awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office of Victims of Crimes, and the SMART Office. Points of view or opinions on this website do not necessarily represent the official position or policies of the U.S. Department of Justice. Neither the U.S. Department of Justice nor any of its components operate, control, are responsible for, or necessarily endorse this website, including, without limitations, its content, technical infrastructure, and policies, and any services or tools provided.