On March 26, 2021, NYSACDL and NACDL released this critically important report on the trial penalty in the New York State criminal legal system. This is the first-ever report on the decades-long impact of the trial penalty in New York State. It includes statistical analysis of the prevalence of the trial penalty, personal stories demonstrating how the issue impacts all New Yorkers by effectively removing a critical check on the state’s justice system, and principles and recommendations for how policymakers and prosecutors can reverse this trend and protect New Yorkers’ constitutional rights.
Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.
To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.
- New Study Criticizes Courts For "Penalizing" Those Who Refuse To Plead Guilty, by George Joseph, WNYC, March 25, 2021
- Defendants Who Refuse Plea Deals Often Get Tougher Sentences. Will The Next Manhattan DA End That?, by George Joseph, Gothamist, March 26, 2021
- Plea Bargaining ‘Weakens Integrity’ of Judicial Process: Report, by TCR Staff, The Crime Report, March 26, 2021
- "The New York State Trial Penalty: The Constitutional Right to Trial Under Attack," Sentencing Law & Policy Blog, March 26, 2021
- New York Playbook PM, by Anna Gronewold and DAvid Giambusso, New York Politico Playbook, March 26, 2021
- City & State First Read Tonight, by Annie McDonough, City & State, March 26, 2021
- 'Coercive' Prosecution Drives Trial Penalty, Defense Attys Say, by Marco Poggio, Law360, March 30, 2021
- The Marshall Project Opening Statement, by Andrew Cohen, March 31, 2021
- Scathing Report Faults Rockland DA In 2012 Gas Explosion Case, by Lanning Taliaferro, Patch, April 1, 2021
- Study Finds Right to Trial Under Attack; Defense Lawyers Seek Way to End ‘Trial Penalty’ in NY State, by Ned Meiners, Davis Vanguard, April 3, 2021
- Opinion: How the trial penalty drives injustice, by Susan J. Walsh and Norman L. Reimer, New York Daily News, April 6, 2021
- When Going To Trial Isn’t Worth It, by Toni Messina, Above the Law, April 15, 2021
- Memo to Joe Biden: Add a Civilian Justice Corps to Your ‘New Deal’, by James Doyle, The Crime Report, April 16, 2021
- Lawmakers have a chance to eradicate the trial penalty, by Susan J. Walsh and Norman L. Reimer, Albany Times Union, May 31, 2021
- Candidates for Manhattan District Attorney on Ending the 'Trial Penalty', by Anna Kaufman, Gotham Gazette, June 16, 2021
- Fixing Rikers requires hard work: Eradicate the trial penalty, by Martín Antonio Sabelli and Susan J. Walsh, New York Daily News, October 16, 2021
- Majority of New Yorkers support package of bills to end wrongful convictions, by Dennis Slattery, New York Daily News, May 3, 2022
Supported by NFCJ
The NACDL Foundation for Criminal Justice preserves and promotes the core values of the National Association of Criminal Defense Lawyers and the American criminal justice system.Support Us Now
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.