Assistant District Attorneys, Federal Prosecutors, and City prosecutors
are known for threatening harsher sentences if a plea is not entered.
This doesn't happen all the time, but it is not uncommon. It's
especially common in federal court, especially due to the severe sentencing.
A recent report shows that those convicted of a federal drug offense via
trial received sentences that were three times longer than those who enter
a plea. Us
criminal defense attorneys refer to this maddening fact, as the trial tax. As a criminal defense
lawyer, I especially enjoy taking my cases to trial. However, the reality
is that sometimes it's a risk due to the trial tax. Defendants are
in essence imposed a trial tax for invoking their Constitutional right to trial.
Currently, 97 percent of defendants charged with federal drug crimes enter
a plea. That's not surprising, considering how federal prosecutors
threaten extremely harsh mandatory sentences, as well as additional strict
charges, if a plea is not entered. While the bulk of my criminal defense
practice is in Johnson County District Court, I have some limited experience
with the Federal Court system and found this to be the case. However,
even in District Court, I experience this.
Johnson County, KS is notorious for overcharging and using the threat as leverage in the
case. In the alternative, they threaten to add extra charges if taken
to trial of further in court. Granted. Sometimes this overcharging works
in my favor. In trial, I can ride the coattails of reasonable doubt regarding
the overcharged issues into the more reasonable issue and obtain an easier
not guilty. It's risky though.
If you don't take a plea in some cases, there is real risk. For example,
Sandra Avery was a small-time drug dealer, who rejected a plea offer for
10 years of prison. That is a little harsh for a small timer possessing
50 grams of crack cocaine with intent to deliver. Because she didn't
take the deal, the federal prosecutor used a sentencing enhancement, and
the woman ended up being sentenced to life without parole. No. She didn't
You might be thinking, "Can't the judge simply provide a more
reasonable lighter sentence when the prosecutor use this abusive tactic?"
Nope. There are strict sentencing guildelines providing little leeway.
Recent statistics found by the Human Rights Watch in 2012 found:
• Average sentences for a federal drug crime who entered a plea was
five years, four months. If they took it too trial, the average sentence
was sixteen years.
• Average sentences for federal drug convictions carrying mandatory
minimum sentences, and entered a plea had an average sentence of 82.5
months. It was 215 months for those who went to trial.
• If the drug defendant does not enter a plea in federal court and
have a prior, the sentenced are 8.4 times longer if they don't do a plea.
There were some cases discussed as well:
• A first-time offender refused a plea of 17 years for meth and possessing
guns. Because she was convicted at trial, the first-time offender was
sentenced to 45.5 years in prison.
• A man facing a 10 year sentence for conspiracy to distribute one
kilogram or more of heroin, was sentenced to life in prison after losing at trial.