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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 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. [Released July 2018]

Documents

  • Download the Report (pdf)


Cover for NACDL report The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save ItThis report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is 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. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Learn more about the trial penalty

Trial Penalty Report Launch Event -- July 10, 2018 

At a special event at the National Press Club in Washington, DC, on July 10, 2018, NACDL released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The keynote speaker at the event was Hon. John Gleeson (Ret.). In addition to NACDL leadership including NACDL Immediate Past President Rick Jones, NACDL Past President Barry Pollack, and NACDL Executive Director Norman L. Reimer, representatives from numerous leading groups in the criminal justice reform movement from across the political spectrum delivered remarks agreeing that the trial penalty in the American criminal justice system is a serious problem that needs to be addressed. Those groups included the Cato Institute, Human Rights Watch, Right on Crime, Texas Public Policy Foundation, Families Against Mandatory Minimums (FAMM), the ACLU, the Charles Koch Institute, the Innocence Project, and Fair Trials International. Pro Bono Counsel Don Salzman from the firm of Skadden, Arps, Slate, Meagher & Flom LLP also spoke, as did New York criminal defense attorney Frederick P. Hafetz. Due to conflicts, the ACLU and FAMM sent their remarks. The entire 90-minute event is available below.

Media Coverage

  • Nation’s Criminal Defense Bar Releases Groundbreaking Report, Principles, and Recommendations Concerning the ‘Trial Penalty’ and the Decline of the Constitution’s Sixth Amendment Right to Trial, NACDL News Release, July 10, 2018 
  • The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It, Sentencing Law and Policy, July 10, 2018
  • Defense Lawyers Decry Disappearance of Jury Trials, Crime Report, July 11, 2018
  • Opening Statement, Marshall Project, July 12, 2018
  • New Report Presents Crucial Findings on the "Trial Penalty" Imposed Against Defendants Who Take Cases to Verdict—and What to Do About It, by Marjorie J. Peerce, National Law Review, July 12, 2018
  • Opinion: NACDL Report: Defendants ‘are being coerced to plead guilty’, by Matthew T. Mangino, Providence Journal, July 13, 2018
  • Has Plea Bargaining Pushed the Sixth Amendment Right to Trial to the Brink of Extinction? A New Report Says Yes, by Celeste Fremon, Witness LA, July 15, 2018
  • To Save The Jury Trial, Must We Kill The Plea Bargain?, by Scott H. Greenfield, Simple Justice blog, July 19, 2018
  • Innocent People Who Plead Guilty, by Toni Messina, Above the Law, July 23, 2018
  • Are Innocent People Pleading Guilty? A New Report Says Yes, by Walter Pavlo, Forbes, July 31, 2018
  • The Daily Appeal, by The Appeal, August 1, 2018
  • Federal Prosecutors Love Snitches; Trump Thinks They Should Get Stitches, by C.J. Ciaramella, Reason, August 23, 2018
  • Breaking Butina? Lavrov Says Plea Squeezed Out of Confessed Russian Agent, by William Echols, December 17, 2018
  • One innocent man gets six years for murder, the other life, WTKR-CBS, December 22, 2018
  • Trial vs. plea deal: majority of defendants give up their 6th Amendment right, WPSD-NBC, May 15, 2019
  • Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction, Sentencing Law and Policy, June 4, 2019
  • Only 2% of federal criminal defendants go to trial, and most who do are found guilty, by John Gramlich, Pew Research Center, June 11, 2019
  • We, the Jury: Jury trials essential to free society but becoming less common, by Derrek Vaughn, Valdosta (GA) Daily Times, July 5, 2019
  • Special Double Issue of Federal Sentencing Reporter on “The Trial Penalty”, NACDL News Release, July 10, 2019
  • Opinion: Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal. by Clark Neily, NBC News, August 8, 2019
  • Lawyer Justin Brooks Explains Why He Took On ‘Brutal’ Brian Banks Case, by Sharon Lynn Pruitt, Oxygen, August 19, 2019
  • Opinion: Prosecutors are Mainly to Blame for the Criminal Justice Crisis, by David S. D'Amato, The Hill, August 21, 2019 
  • Is the Sixth Amendment going extinct?, Brattleboro Reformer, October 7, 2019
  • Video: How our criminal justice system is almost entirely negotiated behind closed doors, NBC News, October 18, 2019
  • Federal Prosecutors Are Punishing Actor Lori Loughlin for Exercising Her Right To Defend Herself, by Scott Shackford, Reason, October 24, 2019
  • President Trump, Why Do You Assume This Is Only Happening To Michael Flynn?, by Walter Pavlo, Forbes, March 15, 2020
  • A Utah man convicted of gang-related robberies to be let out 40 years early because of a new law, by Jessica Miller, The Salt Lake Tribune, May 12, 2020
  • COVID-19 adds indefinite waiting period to delays in justice system, by Jordana Goldlist, The Lawyer's Daily (Canada), May 28, 2020
  • Former prosecutors outraged at decision to dismiss the Flynn case should focus on the real problems, by David Oscar Markus, The Hill, May 29, 2020
  • We Need More Trials By Jury, by Dan Adams, The Bulwark, June 22, 2020
  • Lori Loughlin’s Guilty Plea Came After Defense Attorneys Exposed Prosecutors, by Walter Palvo, Forbes, June 30, 2020
  • John Fetterman and Celeste Trusty: The trial penalty weighs heavily on Pennsylvanians, by John Fetterman and Celeste Trusty, Pittsburgh Post-Gazette, July 25, 2020
  • Our Turn: Calls for racial justice must apply to county attorneys, by Joseph Lascaze and Jordan Thompson, Concord Monitor, August 26, 2020
  • The Trial Penalty And The Case Against Preston Byrd, by Kelly Richmond Pope, Forbes, September 20, 2020
  • Norman Reimer: AG candidates must discuss fixing ‘trial penalty’, by Norman Reimer, Pittsburgh Tribune-Review, September 26, 2020
  • NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House, NACDL News Release, October 13, 2020
  • Opinion: Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System, by Brett Tolman, Townhall, October 17, 2020
  • No More Jury Sentencing. General Assembly Reshapes Virginia’s Legal System., by Brian Carlton, VA Dogwood, October 18, 2020
  • Notable ideas and efforts to take on the trial penalty, by Douglas Berman, Sentencing Law and Policy, October 20, 2020
  • Op-Ed: A Critical Issue Missing From LA County’s DA Race, by Norman Reimer, Witness LA, October 27, 2020
  • Should all life sentences be reviewed? Vacated conviction, $3.1m settlement raise issue anew, by Sarah Betancourt, CommonWealth Magazine, November 13, 2020
  • Trump Prepares Pardon Wave for Final Hours, by Maggie Haberman, Kenneth P. Vogel, and Dana Rubinstein, New York Times, January 18, 2021
  • Chris Young from ‘The Vanishing Trial’ Is Finally Freed, by Debi Ghate, Philanthropy Roundtable, January 28, 2021
  • A Utah man convicted of gang-related robberies could be released from prison 40 years early, by Jessica Miller, The Salt Lake Tribune, April 1, 2021
  • Lawmakers have a chance to eradicate the trial penalty, by Susan J. Walsh and Norman L. Reimer, Albany Times Union, May 31, 2021
  • An overdose. A life sentence. Brandon man’s case denotes stark legal realities., by Dan Sullivan, Tampa Bay Times, September 14, 2021
  • ‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan, by Marc Levin, The Crime Report, September 16, 2021
  • ‘Trial Penalty’ Shocks the Constitutional Conscience — and Cries Out for Reform, by Ira Stoll, The New York Sun, October 11, 2021
  • The Varsity Blues Trial Is a Reminder of Our Corrupt Criminal Justice System, by Ira Stoll, Reason, October 11, 2021
  • Pennsylvania has a do-it-yourself justice system that hurts the accused, by Ronald Fraser, Penn Live, October 12, 2021
  • Opinion: Rhode Island's do-it-yourself justice system, by Ronald Fraser, The Providence Journal, October 18, 2021
  • Opinion: Justice Department wrong to encourage prosecutions it's fearful of losing, by David Oscar Markus, The Hill, November 2, 2021
  • Opinion: To restore the constitutional balance, Chuck Grassley must pass the EQUAL Act, by Martín Sabelli, Des Moines Register, November 21, 2021
  • Opinion: The slow undoing of the Sixth Amendment, by Matthew T. Mangino, Pennsylvania Capital-Star, December 22, 2021
  • The Constitutional Right We Have Bargained Away, by Carissa Byrne Hessick, The Atlantic, December 24, 2021
  • Opinion: Truck driver sentenced to 110 years shows hazards of prosecutors manipulating trial system, by Martín Sabelli, USA Today, January 19, 2022
  • What can the return of Law & Order offer in 2022?, by Adrian Horton, The Guardian February 25, 2022
  • Why do innocent people end up pleading guilty?, by Rebecca Brown, New York Daily News, February 10, 2023
  • New Plea Bargain Task Force Report Highlights the Trial Penalty, Calls for Transparency, NACDL News Release, February 22, 2023
  • The American Bar Association’s Plea Bargain Task Force, by Miko M. Wilford Ph.D., Psychology Today, April 24, 2023
  • A Right Deferred: Is Plea Bargaining Causing a 6th Amendment Crisis?, by Katherine Revello, Connecticut Inside Investigator, July 9, 2023
  • J.D. Tuccille: The injustice of jailing Jan. 6 rioters for 20 years, by J.D. Tuccille, National Post, September 10, 2023

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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.