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, and by a third point if, in the Government's view, the defendant has pled guilty quickly enough to permit the prosecutor to avoid preparing for trial. U.S.S.G. section 3E1.1. While the underlying theory of the two-point reduction is that a guilty plea evidences, and rewards, a defendant's remorse, the third point reduction is justified simply on the ground of saving prosecutorial resources.

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[T]he Court has reached the conclusion that [the third] of those three points, effectively added to the calculated offense level because of the failure of the defendant to save the Government resources, pursuant to section 3E1.1(b) of the Guidelines, ought not even be included in the Guidelines calculation at all, because in reality it is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial. The Court thus issues this pre-sentence Opinion to inform the parties of this conclusion, so that, if the Government disagrees, it can be heard at the time of sentencing.

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In this Court's view, section 3E1.1(b) violates the Sixth Amendment right to trial in at least two ways. First and foremost, section 3E1.1(b) in its entirety effectively penalizes a defendant who, whether innocent or guilty, proceeds to trial based on his decision to exercise his Sixth Amendment right to trial. But whereas section 3E1.1(a) at least arguably justifies this imposition as a reward for a defendant's demonstrating genuine remorse, the only ground given for imposing the additional penalty under 3E1.1(b) is that the defendant failed to save the Government from having to prepare for trial. This cannot possibly be an adequate ground for penalizing a defendant for the exercise of a constitutional right. Worse still, on this flimsy basis section 3E1.1(b) penalizes a defendant who just takes too long to decide whether he wants to assert his constitutional right to trial, even if he ultimately waives it.

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Section 3E1.1(b) also violates the Sixth Amendment for the related reason that it conditions the application of the one-level reduction on a motion by the Government. Pursuant to section 3E1.1(b), a district judge cannot apply the one-level reduction except “[u]pon motion of the government.” U.S.S.G. section 3E1.1(b); see also U.S.S.G. section 3E1.1 cmt. 6 (“[A]n adjustment under subsection (b) may only be granted upon a formal motion of the Government at the time of sentencing.”). By empowering the Government, rather than the district court, to determine the extent to which the defendant has relieved it of that burden and to decide whether he is therefore entitled to the reduction, section 3E1.1(b) amplifies the pressure exerted on a defendant to plead guilty, rather than proceed to trial. In this way, section 3E1.1(b)’s requirement that the Government move for the one-level reduction further burdens the exercise of the Sixth Amendment right.

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Because of the odd way in which section 3E1.1 as a whole is phrased -- as a reduction in offense level for a defendant's not exercising his constitutional right to go to trial -- the remedy for the Court's conclusion that section 3E1.1(b) is unconstitutional is to reduce the penalty thereby effectively imposed on those who choose not to avail themselves of the “benefit” of section 3E1.1(b). The Court therefore concludes that in this, and indeed every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point, because the effect of not giving the one-point reduction to someone who chose to exercise, or considered exercising, his right to go to trial rather than save the Government some time and money is effectively an unconstitutional penalty on all who made that choice.

Whether the other, two-point reduction authorized by section 3E1.1(a) for those who plead guilty and thereby allegedly show their remorse is nonetheless itself an unconstitutional penalty imposed for their exercise of their constitutional right to trial is an issue the Court need not reach in this case, since the Court, for the discretionary and policy reasons stated at the outset of this Opinion, will in any case treat Mr. Tavberidze as having the equivalent of a Guidelines range three points less than what the formal Guidelines calculation would otherwise mandate.

For the whole opinion, see United States v. Tavberidze, 23-cr-585-03 (JSR) (S.D.N.Y. March 10, 2025).

Shortly after this ruling, a sentencing hearing was held during which the government argued against the court's decision. A short memorandum order was issued afterwards that addressed several of the government's arguments. Of particular note was the following discussion regarding whether the Guidelines created a benefit or a punishment. 

Second, the Government argued that because section 3E1.1 is phrased as a benefit to a defendant who pleads guilty in a timely fashion, it should not be viewed as a penalty. But this argument ignores the fact that for several decades now, more than ninety-seven percent of federally-charged criminal defendants have pled guilty, and nearly all in sufficiently timely fashion to receive the full three-point reduction under sections 3E1.1(a) and (b). The reality, therefore, is that the three-point reduction is the overwhelming norm, and only those few defendants who dare to exercise their constitutional right to go to trial fail to receive it. Moreover, the chief beneficiary of the third point under section 3E1.1(b) is, as its language suggests, the Government. Thus, in reality, section 3E1.1(b) operates as a penalty that is imposed only on those few defendants who choose to go to trial and primarily for the benefit of the Government. Applying the one-point reduction thus ensures that all defendants are treated equally, regardless of whether or when they choose to exercise their Sixth Amendment right.

This memorandum order is available at United States v. Tavberidze, 23-cr-585-03 (JSR) (S.D.N.Y. March 14, 2025).