Forcing the Innocent to Plead Guilty

PORTLAND, Ore., July 21, 2016 /PRNewswire/ -- A new study finds that defendants that who insist on their right to trial receive prison sentences 64% longer than if they had pled guilty. According to Dean Strang, defense attorney featured in the documentary Making a Murderer, such large "trial penalties" effectively punish defendants for exercising their constitutional right to trial and force innocent defendants to plead guilty.

By analyzing over 200,000 federal cases, Professor Andrew Chongseh Kim found that defendants who exercise their right to trial receive sentences that are 64% longer than if they had pled guilty instead. These new findings reveal that the trial penalty is over four times larger than previously thought. As Kim explains, "Prior studies ignored federal rules that automatically reduce sentences for defendants who plead guilty. In practice, that means that you can't exercise your right to trial unless you are willing to accept a longer sentence if you lose."

Kim's study shows that 97% of federal defendants receive these "discounts" for pleading guilty. Dean Strang, however, argues that rather than rewarding defendants who plead guilty, this system actually "punish[es] those [few] who go to trial simply because they go to trial. The[se] numbers make clear that guilty pleas set the norms for sentencing, while asserting innocence and trying a case carries a massive surcharge of lost liberty for the defendant who loses [at trial], simply because he took us up on the constitutional promise of a trial."

According to Strang, these large trial penalties can also force innocent defendants to plead guilty. "Annually, thousands of Americans plead guilty to more [serious crimes] than they [actually committed], rather than risk added time incarcerated if a jury gets it wrong. At least some Americans who committed absolutely no crime at all plead guilty for the same reason.  Professor Kim's study focuses on federal cases, but [the innocence problem may be far worse] in our vastly busier state criminal courts."

By exposing the price defendants pay for their right to trial and the risk that innocents plead guilty, "Professor Kim's work threatens to topple two imaginary pillars of our criminal justice system," says Strang. "Any edifice resting on imaginary supports will collapse, so we might consider [this] data… and then turn our attention to rebuilding real pillars in our justice system.  After all, we are in no position to search for the truth in court when we… play make-believe about the very structure of our justice system."

Professor Andrew Chongseh Kim is an Associate Professor at Concordia University School of Law who specializes in criminal law. Professor Kim's peer reviewed article, Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study was recently published in the prestigious Mississippi Law Journal. It is available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2635657

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SOURCE Concordia University School of Law