After more than two years of careful research and deliberation, the National Association of Criminal Defense Lawyers (NACDL) released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The “trial penalty” refers to the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a conviction at trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. The report notes that to avoid the trial penalty, defendants must surrender fundamental rights which are essential to a fair justice system. The release of this report has garnered support from leading criminal justice reform entities, all of which agree that the incursion on the right to a trial poses a clear threat to justice.

The data revealed that after a 50-year decline, fewer than 3% of federal criminal cases result in a trial. That means that more than 97% of federal criminal cases were resolved by guilty pleas. In a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system seems self-evident.

The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. Mandatory minimum sentencing provisions have played an important role in reducing the trial rate from more than 20% thirty years ago to 3% today. Instead of using these mandatory sentencing laws for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who exercised their right to trial. The Sentencing Guidelines also contribute to this lopsided result, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not. Finally, the report found that federal judges are complicit as well. In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big. The same judges who will go along with a plea bargain that undercuts a severe Guidelines range are too reticent to stray from the sentencing range after trial.

National Association Criminal Defense Lawyers NACDLThe report concludes that these excessive trial penalties, undermine the integrity of our criminal justice system. Forcing the government to its proof in a trial is a constitutional right guaranteed under the Sixth Amendment. The “innocence problem”, is the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty versus the outcome if he goes to trial and loses, that even innocent defendants now plead guilty.  A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy its’ burden of proof beyond a reasonable doubt, whether the person is guilty or innocent.

Misconduct and mistakes by law enforcement, witnesses and prosecutors are only revealed through an open and public trial. When the trial process is subverted and limited to only a few select cases, mistakes and misconduct go undetected and result in innocent lives spending years incarcerated. Moreover, when misconduct goes undetected, it flourishes and expands. There are many recent examples of police detectives in various jurisdictions planting evidence, using the same corrupt informant to identify alleged homicide suspects, and other miscarriages of justice.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at