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End the Trial Penalty

The Trial Penalty is the phenomenon that occurs when the government makes losing a trial such a frightening proposition—through the way they charge and prosecute the case—that any reasonable person would accept a plea bargain. Essentially, it is the power of the government to threaten harsh consequences if a defendant asserts the right to trial.

The Trial Penalty is the reason 95% of felony convictions are now obtained via guilty plea, a figure nearly 20% greater than just a few decades ago. Before the 1960s, between one-fourth and one-third of state felony charges led to a trial; today, just one-twentieth do. The Trial Penalty is what drives mass incarceration. It is also a core concern of prosecutorial reformers, who acknowledge that the legislature has given prosecutors such overwhelming power, they can virtually dictate the outcomes of cases through overcharging, mandatory minimums, exploiting unfair sentencing procedures and the like.

How do we End the Trial Penalty in Virginia? Get rid of the tools of prosecutorial coercion: mandatory minimums, uniformed and obligatory jury sentencing, diminished trial rights, increased funding for indigent defense, eliminating incentives for prosecutors to overcharge criminal cases, and the like.