Introduction

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons not only forego a trial, they must also surrender many other fundamental rights which are essential to a fair justice system. Depending upon the jurisdiction, the accused often must plead guilty solely to avoid pretrial incarceration, or, to avoid a vastly increased penalty, may be required to waive the right to discovery, access to Brady material, the right to conduct a meaningful investigation, the right to challenge unlawfully seized evidence, the right to develop mitigation, and the right to appeal.

The New York State Association of Criminal Defense Lawyers (NYSACDL) has created a task force to assess the extent to which the trial penalty exists in the state courts of New York State, and to identify its causes and potential remedies. Our investigation builds on the National Association of Criminal Defense Lawyers’ (NACDL) report which studied the trial penalty on the federal level, however, our focus is purely on New York State prosecutions.

Our goal is to issue a comprehensive report and recommendations that can provide the basis for broad reform movement. To compile the necessary data, NYSADCL seeks your assistance. Your responses to the following survey will be tremendously helpful.

This survey should take no more than 15-25 minutes to complete. It targets state prosecutions (not federal), and consists of two parts. Part I seeks to identify where you practice, the extent to which accused persons in your jurisdictions face a trial penalty, and the various stages in the process at which the trial penalty comes into play. Part II asks you to identify a specific case or cases which you believe the trial penalty was evident and contributed to a particularly illustrative example of resulting injustice.

PLEASE THINK ABOUT ILLUSTRATIVE CASES BEFORE YOU BEGIN TAKING THE SURVEY. While NYSACDL cannot guarantee it will use any particular story, if it does, NYSACDL will contact you to ensure that the information used in NYSACDL's research, reporting, website, press releases, or any other materials associated with the project is accurate, and that your client is identified only with your consent and your client's consent.

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