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Trial Tax

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 kill anyone.

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.