‘Trial Penalty’ Leads Innocent People to Pleading Guilty to Avoid Harsh Sentence, Charges Innocence Project ED

Gavel with open book and scales on table

Gavel with open book and scales on table

By Roni Ayalon

NEW YORK, NY – The “trial penalty system” leads innocent people to plead guilty to crimes they didn’t commit, out of fear of harsh sentences and pressure from their attorneys, according to Christina Swarns, the Executive Director of the Innocence Project.

In an opinion piece this week detailing this phenomenon and its unjust consequences, Swarns writes of her personal experience with an innocent accused who succumbed to the pressure of pleading guilty when faced with “a mandatory minimum sentence involving significant prison time” and “the fact that he was a young Black man whose case would be decided by an overwhelmingly white jury.”

According to Swarns, “less than three percent of criminal cases ever make it to trial,” in part driven by the “trial penalty,” which is “the practice of offering more lenient sentences in exchange for a guilty plea before trial and promising (and imposing) severe sentences after a conviction at trial.

“Confronted with an impossible choice — fighting for their innocence but often risking decades in prison or admitting to something they didn’t do but salvaging their family and future — innocent people can and do plead guilty,” Swarns said.

Swarns cited the case of Tyrone Day, who pleaded guilty to a sexual assault he did not commit, “on the advice of his attorney and under threat of a 99-year prison sentence.”

However, wrote Swarns, “his attorney incorrectly told him that he would be eligible for parole after serving four years. Mr. Day spent nearly 26 years behind bars for a crime he did not commit as a result of that plea deal.”

Day was exonerated in May with the help of the Innocence Project. Out of “more than 3,300 people exonerated since 1989, one in four (25 percent) pleaded guilty. And more than 60 percent were people of color,” notes Swarns.

To explain how the system got to its current state, Swarns pointed to tough-on-crime legislation “that imposes draconian mandatory minimum sentences.”

Swarns adds, “These laws prevent judges from considering mitigating factors — like trauma and abuse — and imposing individualized sentences. Instead, prosecutors can unilaterally decide to file charges that require high sentences and unilaterally decide if, when, and how such charges or sentences may be reduced in plea negotiations.”

Swarns notes there is also “the very rational fear of pretrial detention, which serves as an additional thumb on the scale in favor of taking a plea deal even in cases of innocence and cases in which the stakes are lower because the potential charges are not as serious.”

Swarns argued that this isn’t promoting justice: “A guilty plea short-circuits the process (from discovery to investigation to cross-examination) that can otherwise expose coercion, misconduct, and actual innocence. It also prevents meaningful accountability.”

In order to fix the issue, Swarns “calls for an end to the trial penalty,” citing the End the Trial Penalty Coalition, of which the Innocence Project is a member along with “24 leading national civil rights and criminal legal reform groups.”

Swarns explained the group “has developed reform recommendations and will push for those reforms at every point in the system,” noting a report the Innocence project helped release, under the umbrella of the American Bar Association Plea Bargaining Task Force, that “outlines recommendations to reduce excessive plea bargaining.”

Swarns also highlighted the Innocence Project’s success in New York getting legislators to enact “pre-plea discovery measures that allowed people accused of crimes to see the evidence against them before considering a plea deal, for the first time.”

Swarns explained, “that same legislative package addressed cash bail and pretrial detention to keep people out of pretrial detention facilities like Rikers, and thereby lessen the risk of false guilty pleas.

“Despite the fact that these reforms likely prevented an unknown number of coerced pleas and kept people safely in their communities rather than detained in dangerous jails, there have been multiple efforts to roll back these critical reforms and New York must remain ever vigilant in protecting them.”

Despite these victories, Swarns emphasized the fight for reform is far from over.

Swarns maintains, “We need to eliminate the use of extreme sentences, including mandatory minimums; ensure prosecutors’ offices have ethical charging policies; give judges more discretion to ‘look back’ and adjust excessive sentences; and remove language often used in plea agreements that requires people to waive certain legal rights.”

Swarns also argued for getting “rid of charge stacking — a practice in which police officers and prosecutors level as many charges at a person accused of a crime as they can and, in turn, heighten an accused person’s anxiety and the pressure to settle.”

Swarns also said “we should close the door on ‘take-it-or-leave-it’ offers where people have virtually no time to make a decision.”

Finally, Swarns insists “without a concerted and serious approach to preserving the critical constitutional right to trial, our legal system will continue to function like a game of chance — pushing people to take a bet on the due process of law when they know that the deck is stacked against them.”

About The Author

Roni is a senior at UC Davis, studying Political Science - Public Service with minors in Social and Ethnic Relations, Community and Regional Development, and Sociology. She plans on pursuing a career in criminal justice reform after finishing her degree.

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