April 2010 Archives

April 26, 2010

The Trial Penalty

The right of an accused to a jury trial is fundamental in the United States.  But perhaps we should put an asterisk next to the word fundamental.  A recent study indicates that a "trial penalty" is alive and well. According to the study, when all other factors are controlled for, accused people who go to trial and are found guilty are punished more harshly than those who plead guilty. The study, published in Vol 27 of the Justice Quarterly (2010) is entilted

"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation."

 

An ad that a local lawyer has run for many years states that "Friends don't let friends plead guilty."  Maybe this is backwards.  Given the existence of a trial penalty, maybe friends shouldn't let friends go to trial. 



 

April 14, 2010

Guilty Pleas and Non-Citizens

Most people convicted of crimes have plead guilty rather than gone to trial.  Before pleading guilty, however, defendants understandably want to know what the punishment will be.  In recent years, courts have differed as to whether defense lawyers have to inform non-citizens that they are subject to deportation if they are convicted.  In Padilla v. Kentucky (2010) the U.S. Supreme Court put the debate to bed by deciding by a vote of 7-2 that defense lawyers have an obligation to advise non-citizens that a guilty plea might result in deportation.

The outcome of Padilla makes it more likely that defendants will understand the true ramifications of a conviction before pleading guilty.  On the other hand it may increase the workload of the courts by reducing the number of cases ending with guilty pleas.  In an era when convictions even for minor drug offenses can result in deportation (not only of illegal immigrants but also resident aliens), non-citizen defendants may figure that they have nothing to gain and everything to lose by pleading guilty.