January 01, 2015 Criminal Justice

Judicial Imposition of the Trial Tax

J. Vincent Aprile II

According to reliable estimates, 90 to 95 percent of criminal cases in both state and federal courts are resolved through guilty pleas. Jury and bench trials occur in a very small percentage of criminal cases, regardless of the jurisdiction. Analysts have emphasized that this disparity is the result of plea bargaining and the enormous leverage prosecutors have in that process. But a related and key concern is the impact that judges have in imposing a “trial tax” on those criminal defendants who assert their constitutional rights to trials and appellate review of their convictions and sentences.

Trial tax is a euphemism for a judge imposing a more severe sentence on a defendant, in whole or in part, because the accused, who elected to reject the prosecution’s plea agreement and go to trial, wasted judicial and prosecutorial resources involved in a trial. The concept can be expanded to situations where following an unsuccessful appeal, the trial judge opts to treat the defendant more harshly because the appeal, like the trial, squandered similar resources.

In a Kentucky case where a convicted defendant filed a motion for shock probation following an unsuccessful appeal, the trial judge offered this explanation, at least in part, for his decision to deny the defendant a probated sentence: “[T]he defendant . . . was clearly guilty but fought tooth and nail against the charges. . . . Her efforts to escape charges justly brought against her diverted significant resources of the Commonwealth. . . . The Court is not unmindful that the prosecution presents in almost all cases offers long before trial that are generally lenient compared to the sentences our juries customarily recommend.” This is a judicial admission that this denial of probation was predicated at least in part on the imposition of the trial tax.

In an individualized sentencing equation, should a defendant’s decision to exercise state and federal constitutional rights to a trial and an appeal ever be a factor to hold against the defendant, as this judge explicitly did? Should a judge explain at arraignment that if the accused chooses a trial rather than a plea of guilty and is convicted, the court will in its sentencing decision penalize the defendant for not being vindicated at trial, despite the defendant’s constitutional right to demand a trial?

In deciding an individualized sentence, a court may justify leniency because of the defendant’s guilty plea and whatever other factors, such as remorse, might accompany the admission of guilt. But that leniency does not justify a converse sentencing practice of punishing a defendant for pleading not guilty and thereby depleting court time and resources. A lack of remorse, for example, is not a reasonable inference to draw from the exercise of the right to demand a trial guaranteed to every accused, just as guilt is not a permissible inference to draw from a defendant’s election not to testify at trial. When a sentencing judge bases a finding of a lack of remorse on the mere election to plead not guilty, this constitutes a penalty for asserting a protected constitutional right.

A judge has the right to consider the evidence produced at trial in calculating the defendant’s sentence, but that prerogative does not justify the judge simply relying on a conviction, whether of the charged offense or a lesser included crime, as a basis for imposing the trial tax on the theory that the trial apparently wasted governmental resources. The trial tax is usually imposed before an appellate court has reviewed the trial and affirmed the conviction and sentence. “A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed” (Evitts v. Lucey, 469 U.S. 387, 399–400 (1985)). At the time of sentencing, the trial court cannot predict whether a direct appeal or a post-conviction challenge will reverse the conviction. This is yet another fallacy in the rationale of the trial tax. How can a trial judge who believes in imposing the trial tax be certain at sentencing that the conviction is a valid finding of guilt, allowing the court to characterize the trial as a misuse of judicial resources?

A trial judge in oral and written sentencing decisions should acknowledge that the judge’s personal sentencing philosophy includes a reliance on the trial tax. If the trial tax is referenced by the sentencing judge, regardless of the terminology used, an appellate court is in a position to evaluate whether the defendant was denied due process at sentencing by this approach. Judges who include the trial tax in their sentencing calculus but do not declare it on the record deprive defendants of the ability to challenge on appeal the legality of this penalization. Without the judge’s admission that the trial tax factored into the sentence imposed, the record will contain no basis for appellate review of this issue.

More important, a judge who believes it is fair and just to impose a trial tax in calculating the appropriate sentence should be open and transparent about this aspect of his or her sentencing philosophy. Significant components of a judge’s subjective process of reaching a sentencing decision should not be withheld from the record, particularly when the undisclosed component is controversial or questionable.

By acknowledging the imposition of the trial tax in individual cases, the judge will be notifying prospective defendants that should they elect a trial and be convicted, their punishment will automatically be more severe than had they simply pleaded guilty. Although this public disclosure may discourage future defendants from electing a trial, that is not a basis to support judges remaining silent about their use of the trial tax. Defense attorneys and prosecutors will discern from a judge’s sentencing practices an impression of whether a judge routinely resorts to the trial tax. That impression will be conveyed to criminal defendants by their counsel as each defendant makes a choice between pleading guilty and going to trial. Yet that impression without more will probably not support a claim on appeal that the judge levied the trial tax in a specific case.

Is imposing a trial tax a violation of federal constitutional law? Some would say that the unconstitutionality of the trial tax is a case-by-case decision. The rationale for the unconstitutionality of the trial tax is found in decisions of the U.S. Supreme Court. In one decision, the Court stated, “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort” (Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citation omitted) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32–33 n.20 (1973))).

It is difficult to reconcile this language with a judicial philosophy that imposes a harsher sentence, in whole or in part, on the premise that an unsuccessful trial wastes judicial and other governmental assets. “For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right” (United States v. Goodwin, 457 U.S. 368, 372 (1982)). These protected constitutional rights include the right to plead not guilty and to have guilt determined by a trial.

When the trial tax is explicitly assessed against a defendant, the sentencing decision is tainted even though other factors, whether stated or implied, could explain the court’s ruling. “[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause” (Gardner v. Florida, 430 U.S. 349, 358 (1977)). No amount of parsing the sentence rendered can reveal the extent that the trial tax contributed to the ultimate sentencing decision. The trial tax contaminates the constitutionality of the sentencing process.

As trials disappear from the nation’s criminal justice landscape, judges must realize that a sentencing philosophy that levies a trial tax to ensure courts are available only to defendants who will be acquitted at trial is anathema to due process.

ABA Criminal Justice Section

This article is an abridged and edited version of one that originally appeared on page 30 of Criminal Justice, Spring 2014 (29:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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J. Vincent Aprile II

J. Vincent Aprile II retired after 30 years as a public defender with the Kentucky Department of Public Advocacy and joined Lynch, Cox, Gilman & Goodman, P.S.C., in Louisville, Kentucky, where he specializes in criminal law.