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The Trial Penalty


Alan Dershowitz, a well-known law professor and commentator, recently penned this piece published in the Wall Street Journal titled “Most Plea Bargains Are Unconstitutional.” Deroshowitz writes:

“When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual—even by the Supreme Court. […] In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.”

As discussed below, one of the more egregious examples of the so-called trial penalty occurred in the FCPA context.

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