Legal and civil liberties advocates are working to focus public attention on the "trial penalty," which they say has contributed to the near disappearance of criminal trials in many places, NPR reports. According to the National Association of Criminal Defense Lawyers, "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." In the federal system, about 98% of cases end in plea deals. In big states like Texas and New York, the numbers are similar. In one Arizona county, there were no criminal trials from 2010 to 2012, according to the American Bar Association. The U.S. Constitution guarantees that people accused of crimes have the right to a trial. But in recent years, trials have become an endangered species. "I've read transcripts in which judges say things like, if you plead before trial, you get mercy; after trial, you get justice," said Martín Sabelli, past president of the National Association of Criminal Defense Lawyers. "That's a threat." Sabelli said the system is most harsh on Black and brown people, and low-income people, those who tend to have the least power.
Most criminal cases are brought at the state and local level, so any change must happen state by state. Legislatures could end or reduce mandatory minimum prison sentences. Prosecutors could reconsider how they charge defendants and how many charges they bring. Defense lawyers would have to reevaluate the advice they give some clients. Cully Stimson, a former prosecutor and a senior legal fellow at the conservative Heritage Foundation, believes the system works well as it is. "The fact that many cases result in a guilty plea is not a problem, because in many cases — and I've been a criminal defense attorney — the person is guilty and they're taking advantage of a plea deal that subjects them to less time," he said. "So I don't think there is a trial penalty. I think it's a trial privilege." Stimson said there are good reasons for defense lawyers to encourage their clients to plead guilty. For example, the clients may have a prior criminal record, and a plea bargain may be their only way to win a shorter prison term. Advocates pressing for change say prosecutors have too much power to stack up charges against defendants and create a situation where they face so much prison time that even innocent people feel pressure to strike plea deals.