NACDL is pleased to see the U.S. Sentencing Commission proposing amendments the Sentencing Guidelines that seek to address the unfair practice of allowing acquitted conduct to be considered as relevant conduct under Sentencing Guideline Section 1B1.3.

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

Join NACDL’s President Martín Sabelli for a discussion with advocates who have experienced the trial penalty firsthand, serving excessive sentences after choosing to challenge their case in court.

20^th 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.

The Trial Penalty, Plea Bargains, and Saving the 6th Amendment Right to Trial presented by Martín Sabelli and Dan Canon

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system. [Released July 2018]

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system. [NYSACDL & NACDL] [Released March 2021]

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: Both federal appellate courts and state courts of last resort have inconsistently decided whether the Fourth Amendment protects social guests from unreasonable searches when they visit a home but do not spend the night. In the decision below, the New York Court of Appeals widened this split by ruling that a social guest who [*5] visited for dinner, but did not stay the night, did not have standing to challenge the search of his host's home. See People v. Ibarguen, 37 N.Y.3d 1107, 1107-08 (2021). The inconsistent application of the Fourth Amendment [*6] to social guests also degrades the efficacy of the exclusionary rule in providing clear standards for police conduct and concomitant deterrence of police misconduct by making it difficult to institutionalize uniform practices and compliance through widely-used training materials.

Garners Broad Support with the Launch of a National Reform Effort

The “trial penalty” refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the longer sentence a defendant receives if convicted at trial. The manipulation of the potential penalty creates pressure to waive the right to a trial. With the launch of the Trial Penalty Report, NACDL hopes to begin a reform movement.

on the Border

Operation Lone Star, a Texas effort to secure the border, leverages the trial penalty to secure plea bargains. 

NACDL President Cynthia Hujar Orr’s written statement to the U.S. Sentencing Commission regarding mandatory minimum sentencing in federal law and the value of case-specific discretion.

We write to propose a category of individuals who are deserving of clemency. Specifically, we respectfully request that you consider clemency for (1) individuals who suffered severe sentences as a consequence of having exercised their Sixth Amendment right to trial rather than having pleaded guilty and (2) individuals who accepted severe plea bargains under threat of substantially greater post-trial sentences. These scenarios—routine in our criminal justice system—illustrate a profound constitutional and human injustice: the “trial penalty”…

Expanding the Reach of Criminal Laws Without Increasing the Burdens on the Prosecution

Many voices have sounded the alarm and are mobilizing to untangle the complex web of laws, rules, and culture that authorize coercive plea bargaining practices.