Much attention has been focused in recent years on sentencing differentials in the plea bargaining context. The term sentencing differential captures the difference in sentence received by defendants who proceed to trial versus the sentence of codefendants or similarly situated defendants who plead guilty. For example, a Vera Institute Report from 2020 entitled In the Shadows noted that the odds of incarceration were 2.7 times greater for those who went to trial and the sentences in their review were 57 percent longer. See Ram Subramanain et al, Vera Inst. of Just., In the Shadows: A Review of the Research on Plea Bargaining (Sept. 2020). Many have argued that this represents a punishment for exercising one's Constitutional right to trial by jury, leading some to call this phenomenon the "Trial Penalty."
Academics have been focusing a light on this phenomenon for some time and there are now several cases indicating that the judiciary is listening.
First, as detailed in his recent book, A Second Chance (The New Press 2024), Judge Frederic Block resentenced a defendant named Sherwin Birkett in 2023 under the First Step Act. Among the reasons given by Judge Block for the resentencing was the fact that Birkett had received a significantly longer sentence because he chose to proceed to trial. See United States v.
Sherwin Birkett, Memorandum, Case
No. 90-CR-1063-24, p.16 (June 29, 2023). In fact, Sherwin and one other defendant were the only ones who proceeded to trial in a case involving forty-six individuals. By the time the matter came before Judge Block for potential resentencing, Birkett and the other defendant who proceeded to trial were the only ones left in prison. Everyone else, including the leader of the criminal organization, had received lighter sentences and been released. Judge Block noted in his order resentencing Sherwin, “[E]xtreme sentence
disparity among co-defendants resulting from their choice to go to trial can be
an extraordinary and compelling factor warranting a sentence reduction.”
Two other recent cases are also worthy of note with regard to the role of sentencing differentials in resentencings.
In January 2025, the State of New York Court of Appeals in People v. Brisman made
clear that “a disparity between a plea offer and a trial sentence may be
relevant to the Appellate Division’s determination of whether a sentence is
unduly harsh or severe.” People v. Brisman, No. 108, State of New York Court of Appeals (Decided Jan. 9, 2025). In the same month, the U.S. District Court for the Middle District of Georgia in
U.S. v. Cannon found that a sentencing disparity warranted a reduction
in sentence and stated, “Here, Cannon suffered a substantial penalty by
exercising his constitutional right to require the Government to prove his
guilt beyond a reasonable doubt to the satisfaction of a unanimous jury.” United States v. Cannon, Case No. 4:95-cr-30 (M.D. Ga. Jan. 29, 2025). As described by the court, Cannon was a get-away driver who received 109 years
and 5 months after being convicted at trial. His two co-defendants, by
comparison, who engaged in more violent conduct, received 240 months and 300
months after pleading guilty.
Individuals should not be punished for exercising a right the Constitution guarantees. These cases are important examples of the courts' obligations and abilities where one is punished more harshly simply for proceeding to trial.
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