The NY Times recently published an op ed using the podcast Serial to argue that the defendant would have been better off taking a deal due to the trial penalty. The defendant, after a trial, was sentenced to life in prison plus thirty years. By contrast, the op ed reports that the average murder sentence was nineteen years in prison the year of the defendant’s conviction. The op ed also raises the question of whether the defendant had incompetent assistance of counsel if his lawyer failed to try to negotiate a plea deal. To read the piece, see here .

The op ed recommends that the proposal last year by Judge Rakoff, for plea bargaining conferences, would be one way to avoid the problem of the trial penalty.

The NY Daily News last year reported Judge Rakoff’s proposal as calling for: “a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases. The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn’t be binding. Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.” For the full interview with Judge Rakoff  see here .

I am not convinced that simply increasing judicial involvement in plea bargaining will help to decrease the problem of the trial penalty. In part because the proposal does nothing to address the high potential sentences, which are often mandatory on conviction, that are embedded into the law. Judges generally don’t have authority to dismiss charges, enhancements, or otherwise move around mandatory sentencing provisions. Another problem with this proposal is the high number of judges at both the federal and state level that are former prosecutors. This means that if they are independently evaluating cases and making plea recommendations, they are often doing so from the mindset of a prosecutor and viewing the evidence and its relative strength from that mindset.

Another difficult problem, as the NY Times op ed mentions, is what about innocent defendants? The defendant in Serial maintains he went to trial because he was innocent. Plea bargaining conferences may do little to help the innocent defendant except to put more pressure on them to accept deals.

Cyntha Alkon is an Associate Professor of Law at Texas A&M University School of Law. Prior to joining academia, she was a criminal defense lawyer and worked in rule of law development in Eastern Europe and Central Asia focusing on criminal justice reform issues. She is a contributor of ADR Prof Blog.