To learn more about the Second Look Act, please visit our information page about the bill.
To learn about sentencing in the states in which we’re working, please visit our states page.
“Let the punishment fit the crime.” — W.S. Gilbert, The Mikado
Decades of evidence show that lengthy, mandatory sentences do not reduce crime, but impose high economic and social costs on taxpayers and families. Mandatory minimum sentencing laws also tend to create unwarranted disparities by treating similar offenders differently and different offenders the same. FAMM believes that judges should have the authority to consider all the relevant facts and circumstances of a crime and an individual before imposing a fair punishment. Learn more about why mandatory minimums don’t work here.
Take Action! Tell your lawmakers to end mandatory minimums today.
New to federal sentencing? FAMM has created an easy to understand guide. Check out the link below, and read all about our federal sentencing reform work.
Sentencing Reform at the Federal Level
FAMM is promoting federal mandatory minimum sentencing reforms in the 116th Congress.
FAMM participates in the guideline amendment process by testifying before the USSC, providing feedback and analysis of proposed changes, and meeting with USSC commissioners and staff.
Learn more about the U.S. Sentencing Commission and its impact on reform
Occasionally, FAMM will get involved in appeals which include legal challenges to sentencing laws, including mandatory minimums. We work with outside lawyers to prepare and file a “friend of the court” (amicus) brief, which the Supreme Court reads when deciding the case (and sometimes they even cite it in the opinion).
Learn more about appellate court cases and amicus briefs FAMM is involved in
In Focus: Trial Penalty
What is the trial penalty?
The trial penalty is the substantial difference in the prison sentence that is offered as part of a plea deal and the sentence a person receives if they lose at trial.
Here’s an example from the documentary: Chris Young was initially told that if he pleaded guilty, he would have to serve 14 years in prison. After he decided to go to trial, he was convicted of charges that carried a life sentence, which he is still serving. The difference between what he could have received by pleading guilty – 14 years – and his ultimate sentence after trial – life without parole – was his trial penalty.
What causes the trial penalty?
A number of factors contribute to the trial penalty. In his Introduction to the National Association of Criminal Defense Lawyers’ 2018 report on the issue, former federal judge John Gleeson listed the three main factors:
- The growth of mandatory minimum sentencing laws. These one-size-fits-all punishments allow prosecutors to strong-arm guilty pleas and severely punish anyone who chooses to go to trial.
- Harsh sentencing guidelines. At the federal level and in many states, sentencing guidelines set forth harsh sentencing ranges, which, like mandatory minimums, coerce people into pleading guilty.
- Go-along judges. Too many judges agree to go along with prosecutors and impose harsh sentences when defendants “demand” their right to trial and lose, rather than impose a fair sentence based on their culpability
What are the costs of the trial penalty?
The trial penalty has many costs, including:
- Longer sentences. People can end up serving many more years in prison if they exercise their constitutional right to trial.
- Loss of an important constitutional right. Today, less than 3 percent of federal and state defendants go to trial. Americans are forfeiting their fundamental right to go to trial and being coerced into pleading guilty because the penalty for exercising their right is so great.
- Innocent people plead guilty. The risk of getting an extra decade or more in prison convinces some innocent people to plead guilty. The National Association of Criminal Defense Lawyers found that of 354 individuals exonerated by DNA analysis, 11 percent had pleaded guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty.
- Loss of checks and balances. Jury trials are important because they enable the judicial branch (judges) and citizens (jurors) to check the power of prosecutors. If they are not forced to make cases at trial, prosecutors are free to overreach and start charging more conduct as criminal.
Why are prosecutors in general interested in persuading people to take guilty pleas?
Guilty pleas are considered an effective way to keep the courts from being overwhelmed by too many cases. Trials are expensive because they require staff resources and time. Most agree that people who plead guilty, take responsibility, and avoid putting the government through the cost of a trial deserve some incentive in the form of a shorter sentence. Defendants often benefit from plea agreements. The problem arises when additional charges or sentencing enhancements are added when someone chooses to go to trial.
Why do people go to trial if it’s so risky?
Many people go to trial because they believe they’re innocent and want to exercise their constitutional right to a trial by jury. Others believe they are guilty of a lesser crime than that of which they’re charged. Often, people do not understand that they’re at risk of a trial penalty, either because they’re not in a state of mind to grasp the situation or their counsel has not explained it accurately.
What role does race play in the trial penalty?
As shown in the “Vanishing Trial,” black Americans frequently are offered worse plea deals than similarly situated whites and therefore are more likely to go to trial and get saddled with a longer sentence, or trial penalty. “The Vanishing Trial,” seeks to highlight different types of state and federal cases including drugs, white collar crime, and violent crimes to show how it is applied in a variety of situations. The stories selected reflect that intentionality.
How to Eliminate the Trial Penalty
All Americans have a constitutional right to a fair trial, but that right is disappearing. More than 97 percent of criminal convictions today are secured by plea bargains, thanks, in part, to the trial penalty. It’s time to eliminate the trial penalty and restore our right to trial. Lawmakers, prosecutors, and judges all have a role to play.
- Lawmakers: Repeal mandatory minimum sentencing laws.
Prosecutors use the threat of long, mandatory sentences to coerce people into pleading guilty. Removing this threat will help restore our right to trial. Urge your federal and state lawmakers to repeal mandatory minimum sentences. Lawmakers should also establish strict limits on how much longer a sentence a prosecutor may seek after a plea offer is rejected.
- Prosecutors: Stop penalizing people who exercise their right to trial.
Prosecutors shouldn’t need to threaten people with decades in prison for exercising their right to trial. If you live in a state that elects district or county attorneys, you can commit to supporting only candidates who promise not to penalize people who go to trial.
- Courts: Get involved in plea-bargaining negotiations.
Because our justice system has moved from trials to plea bargains, the courts should require mandatory plea-bargaining conferences that are supervised by a judicial officer who is not involved in the case, unless the defendant waives that opportunity.
More reading on the trial penalty:
- The Trial Penalty: The Sixth Amendment Right to Trail on the Verge of Extinction and How to Save It – report from the National Criminal Defense Lawyers.
- The Trial Penalty, Clark Neily, vice president for criminal justice, Cato Institute
- When the Innocent Plead Guilty – The Innocence Project
- “Most Plea Bargains are Unconstitutional,” Alan Dershowitz, Wall Street Journal, 11/5/2019
- Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, Mississippi Law Journal, Vol. 84, No. 5, 2015
- “The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End” by Norman L. Reimer and Martín Antonio Sabelli
- “Weaponizing Justice: Mandatory Minimums, the Trial Penalty, and the Purposes of Punishment” by Mary Price (FAMM General Counsel)
Quick Facts: Sentencing Reform
- Since Congress created mandatory minimum sentences for drug crimes in the 1980s, the federal prison population has grown from 24,000 prisoners to over 214,000 prisoners – the largest prison system in the country. (Federal Bureau of Prisons)
- One in 31 adults in America is either behind bars, on parole, or on probation. (Pew Center on the States)
- There is no parole in the federal criminal justice system – all federal prisoners are required to serve at least 85% of their sentences. (Pew Center on the States)
- In 2015, 87% of all federal offenders received a sentence of imprisonment; only 10% received probation or home confinement. (US Sentencing Commission, 2015 Sourcebook of Federal Sentencing Statistics)
- In 2015, 95% of all federal drug offenders received prison sentences. (US Sentencing Commission, 2015 Sourcebook of Federal Sentencing Statistics)
- In 2015, 46% of all federal drug offenders were subject to a mandatory minimum sentence. (US Sentencing Commission, 2015 Sourcebook of Federal Sentencing Statistics)
- 52% of (the 21,475) drug offenders in FY 2014 were convicted of an offense that carries a mandatory minimum penalty. (US Sentencing Commission Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System)
- Nearly half of all federal prisoners are serving prison sentences for drugs. (US Sentencing Commission, 2015 Sourcebook of Federal Sentencing Statistics, Figure A)
- In 2015, the average federal prison sentence for a drug offender was more than 1 1 years. (U.S. Dept. of Justice Special Report: ‘Drug Offenders in Federal Prison.”)
- While longer sentences do have some deterrent effect, the majority of deterrence is derived from the first few years in prison. (Mastrobuoni, Giovanni and Rivers, David A., Criminal Discount Factors and Deterrence.)
- Data shows that in the case of incarceration versus remaining in the community, there was a 7% increase in recidivism for those offenders who were in prison. Researchers also find an increased likelihood that lower-risk offenders will be more negatively affected by incarceration. (Gendreau, Paul and Goggin, Claire, The Effects of Prison Sentences on Recidivism.)
- Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits. (Wright, Valerie, Deterrence in Criminal Justice Evaluating Certainty vs. Severity of Punishment.)
- Among low-risk offenders, those who spent less time in prison were 4% less likely to recidivate than low-risk offenders who served longer sentences. (Lin Song and Roxanne Lieb, “Recidivism: The Effect of Incarceration and Length of Time Served,” Olympia, WA: Washington State Institute of Public Policy.)
- Since 1998, Congress has cut funding for state and local law enforcement by 76 percent while increasing the federal prison budget by 45 percent over this same time. (FAMM Foundation)
- The federal prison system consumes over 25 percent of the entire Department of Justice budget. Prison costs are eating up money that could be spent on police and protecting the public from violent offenders. (Statement of Wisconsin Rep. Jim Sensenbrenner.)
- State spending on corrections has grown 324% in the last 33 years. This is triple the rate spending on education has increased. (A Brief from the U.S. Department of Education, Policy and Program Studies Service.)
- The average cost of keeping one inmate incarcerated in 2014 was $30,619.85 ($83.89 per day). (Office of the Federal Register)
- Taxpayers spend over $50 billion annually for state prisons. (Pew Center on the States)
- 87% agreed that “Prisons are a government program, and just like any other government program they need to be put to the cost-benefit test to make sure taxpayers are getting the best bang for their buck.” (Pew Center on the States)
- Compared to the 1 out of 125 American children that had a parent behind bars 25 years ago, today, 1 out of every 28 American children have a parent behind bars. “Two-thirds of these children’s parents were incarcerated for nonviolent offenses.” (Pew: Collateral Costs: Incarceration’s Effect on Economic Mobility.”)
- 7% of children — or 5 million children — in the United States have had a parent incarcerated at some point during their lifetime. This percentage varies by state, but in Kentucky, more than 1 in 10 (13%) of children have had a parent incarcerated in their lifetime. (Annie E. Casey Foundation)
- A recent survey done by the Annie E. Casey Foundation found that:
- 65% of families with a family member in prison or jail could not meet basic needs
- And when fathers are incarcerated, family income can drop by an average of 22 percent.
- 77% of Americans support eliminating mandatory minimum sentences for nonviolent offenders. (Reason-Rupe Public Opinion Survey)
- 84% of Americans believe that some of the money that we are spending on locking up low-risk, non-violent inmates should be shifted to strengthening community corrections programs like probation and parole. (Pew Center on the States)
- When asked about drug policy, 67% of Americans thought the government should focus more on providing treatment, while only 26% thought the government should focus more on prosecuting drug users (7% didn’t know). (Pew Center on the States)
- Voters think, on average, that about a fifth of prisoners could be released without posing a threat to public safety. (Pew Center on the States)
- 62% strongly favor sending fewer low-risk, non-violent offenders to prison in order to keep violent criminals in prison for their full sentence. (Pew Center on the States)
- 59% strongly favor sending fewer low-risk, non-violent offenders to prison and re-investing in alternatives to incarceration. (Pew Center on the States)
- 88% agreed that “We have too many low-risk, nonviolent offenders in prison. We need alternatives to incarceration that cost less and save our expensive prison space for violent and career criminals.” (Pew Center on the States)
- 87% agreed that “Prisons are a government program, and just like any other government program they need to be put to the cost-benefit test to make sure taxpayers are getting the best bang for their buck.” (Pew Center on the States)