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NYSACDL Trial Penalty Project
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NYSACDL Announces Trial Penalty Project

Your Participation Needed!


NYSACDL is involved in a statewide project to investigate, expose, and address the trial penalty throughout New York State. This project is in collaboration with the National Association of Criminal Defense Lawyers (NACDL) and conducted with a large volunteer task force and pro bono assistance from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates. Our goal is to gather the necessary data and human stories that can propel a state-wide reform effort. The full project scope statement is below.




Criminal Defense Attorney Survey Now Available!


We are pleased to announce that the criminal defense attorney survey for this project is now available! We need your help in eliminating the trial penalty in New York by participating. Here is link to the survey.


We urge you to think of your experiences, consider your clients’ decisions and take 15-25 minutes to take the survey and assist this effort.


Defense lawyers are uniquely situated to fully identify the reasons why people surrender their fundamental constitutional right to a trial with startling regularity, and why they also waive other valuable rights. The more broadly we can collect data and the stories that prove the impact of the trial penalty the greater our impact will be. Thank you!


The Scope of the Trial Penalty

“…[C]riminal justice today is for the most part a system of pleas, not a system of trials.
Ninety-seven percent of federal convictions and
ninety-four percent of state convictions are the result of guilty pleas.”
Lafler v. Cooper, 566 U.S. 156, 169–70 (2012)


The use of trials has all but disappeared from the legal system. This has transformed the legal system into one in which almost all defendants waive fundamental rights: the right to a trial; the right to discovery and a meaningful opportunity to investigate; Fourth, Fifth and Sixth Amendment Rights to challenge unlawfully obtained evidence; and the right to appeal. These rights are not only important to the accused but provide a necessary check on law enforcement and prosecutorial overreach and abuse. It is vital to explore and understand the extent to which such waivers may be employed not to reward an accused person for early acknowledgement of guilt , but rather to punish the exercise of fundamental rights.

It is widely believed that the main culprit of the decrease in trial rates is a “trial penalty,” which often refers to the significant difference between a pre-trial sentence offer versus the post-trial sentence imposed as a consequence of exercising the fundamental right to trial. However, when, how and why the trial penalty impacts the criminal process and the causes that contribute to it has not been examined closely in New York State.

Additionally, there has been little study of the various points of the criminal process where the decision to go to trial could be impacted. For example, the coercion could start at the commencement of the case, as prosecutors enjoy unbridled charging authority and the ability to invoke mandatory minimum sentences, which would be applicable for trial but not a plea deal. The defendant’s decision could then be impacted by a judge prioritizing speedy disposition, or a defense attorney who, without adequate discovery or investigation, believes their client will be safer with a plea deal.

The various factors that have eroded the constitutional right to trial have reduced government transparency and accountability, diminished public confidence in the system, and ousted the public from the exercise of its historical oversight role in the criminal justice system as members of a trial jury.

This project will identify and assess the causes, prevalence, and influence of various factors that induce the overwhelming majority of criminally accused persons in New York State to waive a trial. It is vital to understand what factors have contributed to the decline in trials to develop appropriate recommendations to ameliorate those aspects of institutional coercion that unreasonably burden the right to a trial and undermine the integrity of the justice system.