I have often discussed the trial penalty here.  Individuals are too often punished for going to trial.  It appears that individuals in the Varsity Blues case have received a trial penalty for going to trial.  The topic was covered by Law360 HERE.

The Varsity Blues cases have been widely reported and involved wealthy parents paying to get children spots in ivy league or hard to get into schools.  To date, only 2 individuals charged chose trial.  The individuals were convicted.   In advance of sentencing, lawyers for the two argued that these defendants’ behavior was not as egregious as others that had pled.  The lawyers further argued that a penalty should not attach to exercising the right to trial.  The court was not convinced.  The individuals were sentenced to 15 months and 12 months behind bars.  The government had asked for 21 months.  These sentences are three times and in some cases four times what parents that have pled guilty received.

The justification from the government for the increased sentence after trial is always that those that have pled have “accepted responsibility.”  However, according to the sentencing guidelines, acceptance of responsibility only creates a 2 or 3 point swing.  It does not create sentences that double or triple.

The trial penalty chills constitutional rights.  Individuals are incentivized to pled guilty and not exercise their right to trial.  Sentences are not given according to culpability, but instead according to who gets the deal first.

Nancy Gertner, a former federal judge was quoted in the Law360 article stating:

“Oftentimes, the first person who pleads guilty gets the best deal, and it doesn’t matter whether the first person who pleads guilty is the least culpable,” Gertner said. “The guidelines and the system encourages a rush to the courthouse to fall on your sword.”

For sure, changes are needed in the system or we will all lose a fundamental right to challenge the government, who does not always get it right.

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