The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It

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]

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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

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The NACDL Foundation for Criminal Justice preserves and promotes the core values of the National Association of Criminal Defense Lawyers and the American criminal justice system.

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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.

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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.

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