Declining to dine at the trial-penalty table

It's an all-too-familiar conundrum. Our client is charged with serious offenses. The prosecutor offers a deal. It's not great, and it would obligate our client to waive not only trial rights but also appeal and postconviction rights. But if our client doesn't take the deal the prosecutor may pile on additional charges. And if we go to trial and lose, our client is going to face much higher penalties, which may include one or more statutory mandatory minimum prison sentences.

What's a client to do? Cave to the pressure to plead guilty? Or go to trial and risk an exorbitant trial penalty?

It's a calculus unduly weighted against going to trial. But the newly introduced, bipartisan Right to Trial Act could change that calculus. The Act, introduced by U.S. Rep. Victoria Spartz (IN) and several others, would require sentencing judges to consider (1) the need to protect the constitutional right to trial; (2) plea agreements offered to codefendants and other similarly situated defendants; and (3) whether imposing a statutory mandatory minimum sentence would constitute a trial penalty (these would all become 3553(a) sentencing factors). And the Act would authorize sentencing judges to impose sentences below the statutory mandatory minimum in order to protect the constitutional right to trial.

Until that bill or some other measures become law, our clients are likely to be stuck with their statutory mandatory minimums when they lose at trial. But the considerations underlying the Right to Trial Act may still be invoked in support of a variance from the sentencing guidelines for a client whose trial penalty is guildelines-driven.

The Honorable District Court Judge William Kuntz put it well in a recent sentencing order:

Our Constitution and laws set forth the fair range of punishments upon proof of guilt beyond a reasonable doubt, whether guilt is established by way of a guilty plea in the early dawn of a case or by way of a guilty jury verdict at the end of a case. While this Court is aware some believe "the first one to the table gets lunch, the last one to the table is lunch," our Constitution and laws wisely refute that concept: to impose the so called "trial penalty" is to invite the cannibalization of our right to trial. This Court declines to dine at that table. Guilty pleas and prosecutorial efficiency play important roles as servants in the administration of justice; but guilty pleas and prosecutorial efficiency must never be allowed to assume the dominant role of masters in the administration of justice.

United States v. Kasimov, No. 15-cr-95, 2022 WL 1984059, at *7 (E.D.N.Y. June 6, 2022).