This 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.
Trial Penalty Survey
As the release of this report is a beginning point for tackling the dramatic encroachment upon the Constitution’s Sixth Amendment right to trial, NACDL is seeking to learn about more individual encounters with the trial penalty in the American criminal justice system, whether on the federal or state level. If you are interested in sharing a trial penalty story, please click this link to take a short survey: https://www.surveymonkey.com/r/TrialPenalty.
Special Double Issue of Federal Sentencing Reporter on “The Trial Penalty”
The Federal Sentencing Reporter, published by University of California Press, has released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL First Vice President Martín Antonio Sabelli, entitled “The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End.”
FAMM and NACDL Present: The Vanishing Trial
On June 8, 2020, NACDL hosted a virtual screening and one-hour webinar discussing America’s trial penalty problem and the film "The Vanishing Trial." The panelists included Norman L. Reimer, NACDL Executive Director; Barry C. Scheck, Innocence Project Co-Founder and Special Counsel; and Lisa M. Wayne, NACDL Foundation for Criminal Justice President. The entire one-hour webinar is available below.
On June 15, 2020, NACDL and FAMM hosted a virtual panel discussion about “The Vanishing Trial” documentary. The panelists included Sakira Cook, The Leadership Conference on Civil and Human Rights; Brittany K. Barnett, Buried Alive Project; Clark Neily, The Cato Institute; and Norman L. Reimer, NACDL. View the discussion below.
On June 29, 2020, New Yorkers United for Justice hosted a virtual panel discussion of the upcoming FAMM and NACDL film "The Vanishing Trial." Panelists included Robert Rose, a formerly incarcerated advocate; Susan Walsh, New York State Association of Criminal Defense Lawyers; Jared Trujillo, The Legal Aid Society; and Khalil Cumberbatch, New Yorkers United for Justice. Featuring Norman Reimer, NACDL; and Molly Gill, FAMM. View the entire discussion below.
On October 8, Fordham Law School hosted a virtual panel discussion of the FAMM and NACDL film “The Vanishing Trial.” Featured panelists included Robert Rose III, Formerly Incarcerated Advocate; Beth Unger, Legal Aid Society; and Susan J. Walsh, NYSACDL. The panel was moderated by Luna Garzon-Montano and Eli Salaman-Abrams, Fordham Law School.
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.
News of Interest
- 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