SDNY Rules Trial Penalty Unconstitutional
In March 2025, Judge Jed Rakoff of the Southern District of New York issued an opinion challenging the constitutionality of what has been described as the "trial penalty." From the opinion: Why do so few cases go to trial? One reason is the so-called “trial penalty.” Since a prosecutor typically charges -- and is currently required to charge at the outset -- the most serious crimes she can prove, a plea bargain to a lesser charge reduces the risk of the often much higher penalty a defendant would face if convicted at trial. And given the prevalence of legislatively-prescribed mandatory minimum prison terms, there is little a judge can do about this in many cases. Moreover, even in those cases where the charges do not carry mandatory minimum prison terms, the Sentencing Guidelines (“Guidelines”) effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty,...