Inside NACDL: NACDL’s Effort to Confront the Trial Penalty Gains Momentum

NYSACDL Report Confirms Near Extinction of Trials in the Empire State

In March 2021, NACDL and NYSACDL released the trial penalty report. The report defines what practices are encompassed by the trial penalty, identifies the underlying causes, depicts it through profiles of individuals, and proposes concrete reforms to curtail the prevalence of the trial penalty.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Robert Rose was a teenager charged with killing his mother’s abusive boyfriend after a late-night confrontation on the stoop outside his mother’s home. In the course of a struggle over a gun, Robert shot him. Robert had no criminal record and voluntarily surrendered the next day. Despite the homicide charge, he was permitted to remain at liberty for the three years leading up to the trial. The jury rejected Robert’s claim of self-defense. Although the judge was required to impose a mandatory minimum sentence of 15 years to life, she chose to impose the maximum sentence of 25 years to life. The legal team working to secure clemency for Robert after he had served well more than two decades in prison learned that after the state’s case, the prosecutor had offered Robert a sentence of three to nine years. That differential — at least eight times more time simply for exercising a basic right — is the trial penalty.

Fidel Padilla, a 53-year-old legal resident of the United States, owned a company that was performing excavation work for a cable company in Rockland County when it ruptured a gas line causing an explosion outside a residence. The explosion destroyed the home and injured two firefighters and two gas utility employees. Fidel maintained that he did not commence the dig without taking the necessary steps to verify with the utility company the location of gas lines and to arrange for them to mark the locations of gas and electric lines so that the dig would avoid those areas. Threatened with deportation and told that if he pled guilty his wife and son would not be charged, Fidel pled guilty to reckless endangerment. Just a few weeks later, prior to sentencing, Fidel Padilla filed a motion to withdraw his plea after learning that the state agency overseeing utilities had cited the gas company for marking the wrong spot at the excavation site. The citation had been issued a week before the guilty plea, but the prosecutor never disclosed it. Fortunately, the Rockland County judge, noting the coercive nature of the plea, permitted Fidel Padilla to withdraw the guilty plea and dismissed the charges. Prosecutorial use of coercive tactics to bludgeon accused persons into a guilty plea, often without the benefit of full disclosure and in the absence of a thorough defense investigation, is another manifestation of the trial penalty.

These are two of countless stories in The New York State Trial Penalty: The Constitutional Right to Trial Under Attack, a joint project between NACDL and the New York State Association of Criminal Defense Lawyers (NYSACDL). The report ( finds that 96 percent of all felony convictions and 99 percent of misdemeanors in New York State are the result of guilty pleas. The report, which was released on March 26, 2021, was the product of more than two years of research, surveys, and study conducted by an NYSACDL task force.{1} 1  The NYSACDL Trial Penalty Task Force included the following members: Susan J. Walsh, Chair, Mike Baker, Christopher Boyle, Rebecca Brown, Lori Cohen, Elizabeth Fischer, Timothy Hoover, William Leahy, Christopher Madiou, Grainne O’Neill, Jill Paperno, Nathan Pysno, Martha Rayner, Norman L. Reimer, Donald Salzman, and Jocelyn Strauber. The task force was also supported by a team of pro bono attorneys from Skadden, Arps, Slate, Meagher & Flom LLP.The objective of the project was to define precisely what practices are encompassed by the trial penalty, authenticate its existence, identify the underlying causes, depict it through profiles of individuals typified by Robert Rose and Fidel Padilla, and propose concrete reforms to curtail the prevalence of the trial penalty. The report succeeded on all counts, prompting former New York State Chief Judge Jonathan Lippman to observe in the report Foreword that “[w]hen punishment is significantly enhanced merely because an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice,” and further observing that the report “shines a light on the nature and breadth of the trial penalty in New York State.”{2} 2  NACDL & NYSACDL, The New York State Trial Penalty: The Constitutional Right to Trial Under Attack 4 (2021); 

This is precisely the impact NACDL contemplated in 2018 when it released its seminal report on the trial penalty, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.{3} 3  NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018); That report, which focused on the federal trial penalty, was intended to launch a national effort to restore basic rights, not just the right to a trial, but the right to litigate all aspects of a case without facing an ever-increasing penalty for asserting those rights. It was as clear to those who worked on that project, as it is to virtually every criminal defense lawyer in this country, that the trial penalty is pervasive throughout state criminal legal systems. And the New York report underscores how the causes and cures will vary from state to state and sometimes from county to county.

The specific factors that produce a trial penalty are a function of laws, polices, procedures, and culture. For that reason, the necessary fixes will vary from place to place. For example, in the federal system, NACDL identified judicial disengagement from the plea process as a contributing factor. Federal judges are not permitted to participate in plea discussion and, as a consequence, judges are often oblivious to prosecutorial manipulation of the charging function to penalize those who do not dispose of their cases without litigation. In contrast, a key problem in New York is judicial involvement, with judges often using the leverage of mandatory minimums and wide judicial latitude to either pressure an accused to plead guilty or severely punish an accused person who insists on asserting basic rights. That was evident in the sentence imposed on Robert Rose. How could a judge — knowing that the prosecution thought that three to nine years was an appropriate sentence for punishment, deterrence, and protection of the public — impose a sentence of 25 years to life, 10 years more than was required? What is that if not sheer vindictiveness to discourage individuals from letting a jury of one’s peers decide guilt or innocence.

Indeed, another profile in the New York report provides an even more vivid picture of judicial complicity in how the trial bludgeon is used to crush basic rights. George Mims was charged with two robberies occurring within a few minutes of each other in a Bronx apartment building. Out of seven witnesses, only two identified Mr. Mims, one of which later admitted that she was never sure of her identification. Additionally, there were significant discrepancies between the description of the perpetrator and George Mims. He because a suspect because he was on parole for possession of a weapon. George voluntarily surrendered and presented a defense based upon a solid alibi and the complete lack of any evidence other than the two questionable identifications.

During the trial, Robert Mims was repeatedly offered a plea to 15 years. Then, just minutes before the jury returned a verdict, he was offered 10 years. Maintaining his innocence, he angrily declined the offer. After conviction, the judge imposed a sentence of 40 years, quadruple the offer made five minutes before the conviction. George Mims, who is now 53, has served 23 years in prison and will not be eligible for parole for another 11 years. This is the ugly, brutal reality of the trial penalty in New York.

The 10 principles and 15 recommendations in the New York report focus keenly on the factors that contribute to the trial penalty in the Empire State. While the problem is pervasive throughout the nation, there is little doubt that the contributing factors will vary among the states. That is why it is essential that the criminal defense bar in every state launch its own study. For its part, NACDL stands ready to support that work with a wide array of resources. Reform of the trial penalty is essential to redress virtually all the inequities that are rife in the criminal legal system. Coercive plea bargaining and the broad extraction of waivers that undermine transparency and discourage the assertion of basic rights under the threat of geometrically increased punishment must be exposed and reformed. Every defense lawyer who has agonized over the duty to advise a client to consider waiving various rights to avoid a far harsher punishment knows that the prevalence of the trial penalty is a manifest and tyrannical injustice. A national movement to end abusive trial penalty practices is essential to safeguard the rights of individual clients and to restore fundamental integrity to the system. NACDL welcomes the opportunity to partner with affiliates and other reformers to lead that movement.

About the Author

Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

Norman L. Reimer
Washington, DC

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