I was in the chambers of a judge I respect a great deal trying to reach a plea bargain in a complex case the other day. Well before trial, he made an offer of a given period of years in a case involving many alleged victims. After a trial in several of the cases, a trial in which my client was convicted, we were trying to settle the case all over again. Suddenly, the judge's recommendation was that my client serve double the time initially offered to resolve the same universe of cases.

"How did my client suddenly become deserving of twice as much punishment?" I asked. I told the judge I thought he was imposing a trial tax, a penalty for having elected to go to trial.

The judge was uneasy. "I don't see it as a tax," he said. "I view the pretrial offer as a discount."

I could see the judge struggling to avoid confronting a reality almost all practitioners recognize: defendants who reject plea offers and are convicted are punished far more heavily than those who simply plead guilty.

I think the judge was trying to say that the value of a case, the amount of time a defendant must spend in jail, is determined after trial. Thus, any plea is a discount from the actual value of the case.

That's bass ackwards, a novel attempt to put a happy face on a tragic reality. The overwhelming majority of criminal cases—in excess of 90 percent—are resolved by way of plea bargains. Practitioners develop a sense of a case's value by comparing similar cases. Because so few cases go to trial, almost all the data about what a case is worth is drawn from the universe of cases in which pleas are entered. No one discusses pretrial offers as discounts; everyone, scholars and practitioners alike, refer to the disparity between plea and trial outcomes as the result of a tax.

But I forgive the judge his game effort to make a failed market, a market that betrays core constitutional principles by punishing people for insisting that such rights as the presumption of innocence be taken seriously, look legitimate.

What I don't forgive is the judge's inability to see how a concession he made at the end of our discussion undermined his premises.

"How would you react to the following?" I asked. "Why not require that the last best plea offer be placed in a sealed envelope? If there is a conviction, unseal the envelope. Let the last best effort be the presumptively reasonable sentence, with the state required to justify an increase on grounds other than punishing a defendant for insisting on his right to trial?"

The judge wasted not a moment. "My pretrial offers would go up," he said, with no apparent recognition that he had just lost the argument.

Consider the implications: If pretrial offers are to serve as an incentive to defendants to waive trial rights, then those offers must be low enough to be attractive alternatives to trial. A system that let defendants exercise their constitutional rights while not penalizing them if they lost the trial was not attractive to the judge.


Such a regime would not give folks an incentive to avoid trial. Defendants could have their trial and the benefit of a pretrial offer. In other words, there would be no penalty for taking a case to trial.

I didn't press the point with the judge. I had a client to represent, and this was no mere academic debate. My client's life was hanging in the balance.

But I know the judge reads this column, and he knows I am right: We penalize defendants who dare stand on their constitutional rights, making a mockery of justice. Calling the trial tax a discount is like calling a prostitute generous with her favors.•