Trial Tax

Pieman comments on this post about "jury taxes":

Although I understand the argument that defense counsel and judges make that increasing what we ask for in terms of sentences after trial amounts to a "jury tax," the fact is that it is in the interest of reducing our case loads, relieving clogged court dockets, and encouraging defendants to simply accept the consequences for their actions and move on with life that causes us prosecutors to make substantially better sentencing recommendations in exchange for a guilty plea. It does not serve the best interests of the justice system to give someone who refuses to acknowledge guilt and forces the court to allocate precious resources to their case (even in the many trials where it was just a matter of not liking my offer in the face of overwhelming evidence) to sentence the defendant to a deal equal to or better (for them) than the deal I offered. As a prosecutor, I'm duty-bound to treat like individuals similarly. It is shocking to see judges who will give out light sentences (especially post-trial) often, as it appears, on a whim, and in the process undermining my ability to manage case loads and court dockets by negotiation, as the incentive for plea disappears when judges will not take into account the fact that initial plea offers do consist of a "non-jury discount" from what we'd really like to impose as a sentence...

Now, this isn't really an issue in Virginia because of jury sentencing (our jury system has more severe problems than this). However, in Virginia it can arise in bench trials; in this case it is more of a tax on the exercise of the right to plead not guilty.

My belief as to the prosecution's request for a greater sentence because a trial took place depends upon exactly what we are talking about.

For the purposes of this discussion assume a Defendant charged with robbery and sentencing guidelines which tell everyone he is presumed to receive a 13-17 year sentence; 98% of all similar Defendants get 15 years. It's a run of the mill case with no great passion, journalistic interest, or aggravating factors involved.

Scenario A: I go talk to the prosecutor and she offers my client 13 years if he pleads guilty. My client declines and, after trial, is found guilty. At the sentencing hearing the prosecutor pushes for the 17 years.

Scenario B: I go to the prosecutor and she insists on 15 years or a bald plea. My client declines and, after trial, is found guilty. At the sentencing hearing the prosecutor pushes for the 17 years.

I would have far less of a problem with A. The prosecutor has offered the Defendant something in exchange for keeping the dockets from clogging and reducing the prosecution workload. The Defendant has neither reason nor right to expect that after going through the difficulties of getting his case together the prosecutor should act in a lenient manner.¹

In B the prosecutor has offered nothing except trial or a guilty plea. She has neither reason nor right to expect anything other than a full blown trial from the Defendant and if she then stands up in the sentencing hearing asking for a greater sentence she's not justified in that act. By not offering anything she is at least partially responsible for the trial and the request for a greater sentence loses its rational aspect and looks very much like a vindictive act meant only to punish the exercise of the right to put the prosecution to its proof.

[caveat] Yes, I understand that there all sorts of variations on these scenarios which can vary the analysis. This is like the analyses in your Econ 101 class: simplistic to get a point across but subject to an infinite number of variables if applied in the real world.


¹ However, the judge should have a different standard. He shouldn't accept the prosecution's motion to sentence above the normal 15 years (assuming no aggravating factors other than just the fact it went to trial).