August, 2018

Report Examines Issue of Innocent Federal Defendants Pleading Guilty

The National Association of Criminal Defense Lawyers (NACDL) issued a report in July 2018, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It,” examining the issue of innocent defendants in federal court (although noting that many of the same problems exist in state court systems) pleading guilty to avoid the potential high risks of going to trial. In the report’s Foreword, written by John Gleeson, the issues of “the vanishing trial,” “trial penalties,” and the innocent pleading guilty are highlighted. Mr. Gleeson noted that thirty years ago the rate of cases going to trial was more than 20%; currently, however, the rate is about 3%. Factors leading to the decline include mandatory minimum sentences, the sentencing guidelines, and “complicit” trial judges who have “internalized a cultural norm that when defendants ‘roll the dice’ by ‘demanding’ a trial, they either win big or lose big.” The current system diminishes the constitutional presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt.

“The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present.” Among the recommendations to improve the system and increase the proportion of trials, is the elimination of mandatory minimum sentences, greater judicial oversight of plea discussions, and more focus on the sentences of codefendants pleading guilty. For example, in one case referenced, the defendants were charged in a complex case involving the purchase of life insurance policies. One defendant pleaded guilty, received a 10-year sentence, and testified against the other defendant who went to trial. The defendant convicted at trial was sentenced to 45 years, and the testifying codefendant had his sentence further reduced to 5 years.

The report noted that because of the high risks after a trial-based conviction, “defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard…. [J]udges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct.  Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.” The report noted that few people today view a “trial by jury as a bulwark against the arbitrary and capricious use of government power” and as the “primary protection for individual liberties and … the public participation in the criminal justice system.”

The report found that trial penalties have a “corrosive effect” on the criminal justice system and noted that those accused of a crime “should not have to gamble with years of their lives in order to have their day in court.” Trial penalties have made the government “the most powerful player in the criminal justice system”; have caused defense counsel to spend most of their time negotiating pleas and preparing sentencing memoranda; have limited the supervisory role of judges over the legality and sufficiency of the criminal cases; have adversely impacted and led to an atrophy of trial skills; have exponentially increased incarceration rates, causing devastation in lives and communities; have led the innocent to plead guilty (the report cited a statistic from the National Registry of Exonerations that 359 exonerees had pleaded guilty); and have deprived communities of a jury’s role of standing as a check on government excesses.

The report presented ten recommendations:

1. USSG §1B1.3 should be amended to prohibit the use of evidence from acquitted conduct as relevant conduct.
2. USSG §3E1.1(b) should be amended to authorize courts to award a third point for acceptance of responsibility if the interests of justice dictate without a motion from the government and even after trial.
3.  USSG §3C1.1 should be amended to clarify that this adjustment should not be assessed solely for the act of an accused testifying in her or his defense. Application Note 2 should also be clarified in this respect.
4.  Mandatory minimum sentencing statutes should be repealed or subject to a judicial “safety valve” in cases where the court determines that individual circumstances justify a sentence below the mandatory minimum.
5.  Defendants should have full access to all relevant evidence, including any exculpatory information, prior to entry of any guilty plea.
6.  The government should not be permitted to condition plea offers on waiver of statutory or constitutional rights necessary for an accused person to make an intelligent and knowing decision to plead guilty. This includes an accused person’s decision to seek pre-trial release or discovery, investigate a case, or litigate statutory or constitutional pre-trial motions.
7.  There should be mandatory plea-bargaining conferences in every criminal case supervised by a judicial officer who is not presiding over the case unless the defendant, fully informed, waives the opportunity. These conferences would require the participation of the parties but could not require either party to make or accept an offer. In some cases, one or more parties might elect not to participate beyond attendance. 
8.  After substantial service of a sentence, courts should review lengthy sentences to ensure that sentences are proportionate over time.
9.  Procedures should be adopted to ensure that the accused are not punished with substantially longer sentences for exercising their right to trial or its related rights. Concretely, post-trial sentences should not increase by more than the following: denial of acceptance of responsibility (if appropriate); obstruction of justice (if proved); and the development of facts unknown before trial.
10.  In assessing whether a post-trial sentencing disparity is unwarranted, the sentencing court shall consider the sentence imposed for similarly situated defendants (including, if available, a defendant who pled guilty in the same matter) and the defendant who was convicted after trial. The sentencing court shall consider whether any differential between similarly situated defendants would undermine the Sixth Amendment right to trial.

Sources:  Walter Pavlo, “Are Innocent People Pleading Guilty? A New Report Says Yes,”, July 31, 2018:
NACDL, “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” July 2018:

by Neil Leithauser
Associate Editor