Sentencing Reform | FAMM

Sentencing Reform

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.

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.

Read FAMM’s Sentencing For Beginners

116th Congress Prison Reform Legislation

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:

  1. 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.
  2. 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.
  3. 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.

  1. 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.

  1. 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.

  1. 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:

Quick Facts: Sentencing Reform

Sentencing Reform at the Federal Level

FAMM is promoting federal mandatory minimum sentencing reforms in the 116th Congress.

Learn more about current bills in Congress that FAMM supports and opposes

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

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