On a summer day in 1992, 19-year-old Robert Rose arrived at his home in Queens to find his mother’s boyfriend standing outside with a gun. Rose says he tried to move away, but that the boyfriend then approached him and the two soon got into a tussle. Rose eventually got control of the weapon, but then, he says, he saw the man reaching for something. He thought it might be another gun. He fired several times, killing the older man.
The next day Rose turned himself in. The Queens District Attorney indicted him with murder and decided to go to trial. That’s when prosecutors made him an offer: he could plead guilty and accept a three-to-nine year sentence, or he could take his chances with the jury. The teenager had no criminal history and thought the jurors would believe his self-defense. So he turned down the deal.
“You figure you go to trial and you tell your story and, you know, the jury will believe you,” Rose, now 48, remembered.
But, in Rose’s case they did not. They found him guilty, and the judge gave him twenty five years to life, a sentence far harsher than the plea offer he could have agreed to. He ended serving 24 1/2 years. That massive difference between what Rose would have gotten if he had pleaded guilty and what the judge sentenced him to after trial is referred to in the halls of the criminal courthouse as “the trial penalty.”
Across New York state, the overwhelming majority of criminal defense attorneys believe that defendants like Rose, who choose to exercise their Sixth Amendment right to a trial by jury, face this penalty. That’s one finding from a new study from the New York State Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers. Of the more than 300 New York defense attorneys surveyed for the study, 94% said they believe the trial penalty plays a role in their local court systems.
The study also examined a sample of 79 criminal cases in Manhattan, and found that two-thirds of the time defendants who chose to go to trial received harsher sentences than had they opted for pleas. Looking only at the small sample’s more serious cases, where the plea offer time was more than four years, the study identified a trial penalty 89% of the time.
The driving forces behind the trial penalty are numerous, the study found. Judges are governed by mandatory minimum sentences, and survey respondents pointed out that judges therefore sometimes use their role in plea bargaining to pressure defendants into taking the deals offered by prosecutors. Also, prosecutors, saddled by immense caseloads, frequently overcharge upfront in order to secure quick plea deals to avoid time-consuming trials.
Susan Walsh, a defense attorney who chaired the study, argues that the fear of the trial penalty is even more consequential to the system than the penalty itself. “It is the threat of the trial penalty that has filled our jails beyond capacity, and has resulted in the US having the highest per capita rate of incarceration in the world,” she said.
Unlike Robert Rose, most defendants in New York find it too risky to go to trial, Walsh points out. “The fact that 96% of felony convictions are disposed of by a plea agreement and not by trial, and that that number has been increasing over the years, is point-blank evidence that there is a trial penalty in this state,” she said.
Avoiding trial can have its benefits. Many defendants prefer to have their cases resolved quickly to avoid being locked up pre-trial or having to miss work and find childcare again and again as their cases drag on for months.
And right now, the courts have too few resources to handle a spike in trials, and this puts pressure on many institutional parties—judges, prosecutors, and public defenders—to come up with plea agreements, noted Jonathan Lippman, the former Chief Judge of New York.
“I totally feel that judges do not consciously say ‘Oh listen, maybe I could get this defendant to plead guilty because he or she is afraid of a harsher penalty and that’s the only thing that matters on my mind,” he said. “You can have thirty, forty cases on a calendar a day. You can have the defense counsel and the prosecutors for that matter have huge calendars of their own. Everybody knows that every case can’t be tried.”
Walsh added that efficiency comes with a cost. When the stakes of going to trial are too high, defendants and their attorneys are not forcing police or prosecutors to explain how they came up with their evidence. “We can never ferret out bad actors in law enforcement or bad prosecutorial conduct if we don’t shed the light on them under oath in a courtroom,” she said.
In addition to reforms recommended by the study, such as the legislative rollback of mandatory minimum sentences and more reasonable prosecutorial charging decisions, Lippman said the courts need more funding for more judges and more courtrooms to avoid becoming “a conveyor belt.”
Some of the changes pushed for by the defense attorneys’ coalition could be coming to Manhattan through a new District Attorney. At a candidates’ forum, hosted by Gothamist/WNYC last October, all candidates pledged to end the trial penalty, which is also known as the “trial tax.”
One of the candidates, former federal prosecutor Alvin Bragg, declared he would tell his line prosecutors to stop overcharging. “The charges from the beginning must fully comport with the facts and the evidence and not be some sense of aspiration looking at plea bargaining,” he said. Bragg also emphasized that if the system is going to be able to handle more trials, prosecutors would need to proactively shrink their caseloads.
The Manhattan District Attorney’s Office declined to comment for this story. But in a speech last year, Manhattan District Attorney Cyrus Vance, who is set to retire, mentioned that since 2010 his office has already cut overall prosecutions by 58%. The Office has achieved this, in part, by phasing out the routine prosecution of certain charges such as marijuana smoking and possession, subway fare evasion, unlicensed vending, nonpayment of fines, loitering for prostitution, peaceful protest, and summons cases.
Some Manhattan District Attorney candidates have also called for shifting funding out of the office, a move which could stretch resources for a DA interested in encouraging and providing resources for more trials.
Rose, the man who rolled the dice and spent almost 25 years in prison, says the candidates’ promises sound good in theory. But he’s skeptical. “You know they say they’re going to make a change, but I never really feel that level of change coming from them,” he said.
The primary for the Manhattan District Attorney’s race is set for this June.
George Joseph reported this story for the Gothamist/WNYC Race & Justice Unit. If you have a tip, or if you work or have worked in a prosecutor's office, a law enforcement agency or the courts, email reporter George Joseph at firstname.lastname@example.org. You can also text him tips via the encrypted phone app Signal, or otherwise, at 929-486-4865.