Punishing Protestations Of Innocence: Denying Responsibility And Its Consequences

Trials are costly, particularly to the defendants who receive them. Under the Federal Sentencing Guidelines, the defendant who goes to trial forgoes a discount in his sentence for "accepting responsibility". The defendant who goes to trial and testifies unsuccessfully as to his innocence can receive an increase over the putative sentencing range for "obstructing justice". These penalties add up. For a number of crimes, the response to the defendant's post-offense behavior is more punitive than the response to the crime itself. Assuming no significant criminal history, a defendant charged with stealing $20,000 who pleads guilty will receive, with the discount for accepting responsibility, a sentence of 0 to 6 months in jail. The same defendant who insists upon trial and testifies unsuccessfully as to his innocence must be sentenced to 10 to 16 months in jail if the judge concludes that the defendant did not accept responsibility and perjured himself. Denying responsibility converts the possibility of probation into the certainty of jail time. The defendant's post-conviction behavior deserves as much jail time as the crime of stealing $100,000. We punish those who protest their innocence. This is not the official view. Under the Guidelines, the sentences imposed in the more than 90% of the cases in which a defendant pleads guilty are the exception and the sentences in the fewer than 10% of the cases in which the defendant goes to trial are the rule. Defendants who insist upon trial are not being punished for insisting upon their innocence but are only denied the benefit that accrues to those who are willing to accept responsibility. This approach obfuscates sentencing reality in violation of the spirit of the Guidelines. Particularly when combined with the penalty for unsuccessfully testifying to one's innocence, it creates powerful incentives for the innocent as well as the guilty to plead. It lacks support in the theory of punishment embraced by the Guidelines. The policy makes most sense if viewed as punishment for the anti-social behavior of resisting the state's accusations. This article explores whether one might approach the apparent "problem" of a defendant insisting upon his innocence through explicit regulation of the defendant's Sixth Amendment rights. It concludes that the penalty for testifying in one's own behalf lacks justification and should be rejected. With respect to the penalty for insisting upon trial, the ideal rule would be one that encourages the guilty to plead and the innocent to go to trial. The current system of permitting the parties to trade trials rights for years of incarceration does not achieve this result because the innocent who are prosecuted have no guarantee that they will be acquitted and considerable assurance that if convicted they will be punished because they refused to plead. By definition, their insistence on their own innocence establishes that they have not accepted responsibility for their criminal conduct. The article tentatively concludes that, with all of its many difficulties, an approach which permitted the trial court to punish those defendants whose insistence upon trial is frivolous is preferable to the current approach of punishing virtually everyone who insists upon trial while denying that we are punishing anyone.