The Death of Criminal Law

Every criminal defense attorney has heard of the trial penalty, i.e., the reality that clients who exercise their right to trial and are subsequently convicted will receive a sentence worse than the sentence they would have received had they accepted a plea bargain. All defense lawyers have stood beside a client who follows the script in a plea allocution, asserting that no one has “threatened or coerced” the plea, but knowing that the entire process is rife with the coercion of vastly enhanced penalties after a trial. In the scenario presented by David Gerger, a lawyer and client discuss the lawyer’s recent meeting with the prosecutor. The client is facing 20 years in prison if convicted. If the client agrees to plead guilty and cooperate in an investigation against another individual, then the prosecutor will recommend 10 months in prison and agree not to prosecute the client’s wife. This scene is repeated daily in law offices around the country.