The Trial Penalty: The Scourge of the American Criminal Legal System

20th Annual State Criminal Justice Network Conference
August 18-20, 2021 | Held Virtually

The panelists discuss the trial penalty's impacts and solutions, including NACDL’s national campaign to expose and curtail the trial penalty through comprehensive state-based studies.

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The trial penalty is the vastly increased penalty after conviction faced by those who assert fundamental rights, such as the right to obtain discovery, conduct adequate investigation, challenge unlawfully obtained evidence, and the right to trial and appeal, compared to the penalty faced by those who plead pre-trial and waive those rights. The threat of these vastly enhanced penalties induces most accused persons, including those who are actually innocent, to waive all manner of rights. It reflects a grossly unbalanced system in which prosecutors wield their unbridled charging authority and mandatory sentencing schemes as a bludgeon to coerce guilty pleas, effectively eliminating trials. The trial penalty affects virtually anyone charged, but its weight falls most heavily on minorities and contributes significantly to racial and ethnic disparity. The penalty is sometimes referred to as “trial tax.”

  • Susan Walsh, Partner, Vladeck Raskin & Clark, PC and Trial Penalty Project Chair, NYSACDL
  • Jeffery Robinson, Executive Director, The Who We Are Project
  • Vikrant Reddy, Senior Fellow for Criminal Justice, Charles Koch Institute
  • Moderated by: Norman Reimer, Senior Policy Consultant, NACDL
     

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