John,

When I was just starting out as a public defender, I got the opportunity to assist on a case that was scheduled for trial. Our client, a young Black man, made it clear that he was innocent. If convicted after trial, he faced a mandatory minimum sentence involving significant prison time. We worked incredibly long hours and developed a trial strategy that we believed could vindicate him.

On the morning that jury selection was scheduled to begin, we got an offer from the prosecutor that if our client pleaded guilty, he could be free within a year. I watched as our client struggled with this offer. He said he was innocent — why should he admit to something he didn’t do and go to jail? If we believed he was innocent, why would we urge him to plead guilty? 

But my colleagues were experienced and they explained the enormous risks of going to trial, including being judged by an overwhelming white jury. So, our client pleaded guilty. 

The Sixth Amendment enshrines the right to trial for anyone accused of a crime. Yet, in America today, less than 3% of criminal cases ever make it to trial. A lot of factors drive that statistic, but today, I want to talk about the trial penalty — the practice of offering more lenient sentences in exchange for a guilty plea before trial and promising (and imposing) severe sentences after a conviction at trial.

Please, take a moment right now to read more about the issues with the trial penalty, how we got here, and how we can advance some truly transformational reforms.

Many people wonder why an innocent person would confess to a crime they did not commit, but it happens all the time. Confronted with an impossible choice — fighting for their innocence but risking decades in prison or admitting to something they didn’t do but salvaging their family and future — innocent people can and do plead guilty. 

Take our client, Tyrone Day, who was exonerated just last week, 33 years after his wrongful conviction. On the advice of his attorney and under threat of a 99-year prison sentence, he pleaded guilty after his attorney incorrectly told him that he would be eligible for parole after serving four years. He just wanted to get back to taking care of his health and his kids. He ended up spending nearly 26 years behind bars for a crime he did not commit as a result of that plea deal.

Of the more than 3,300 people who have been exonerated since 1989, one in four pleaded guilty to crimes they didn’t commit — and more than 60% were people of color.

Without a concerted effort to preserve the right to trial, the ability to maintain one’s innocence and pursue due process of law will continue to be a game of chance in which the deck is stacked against those seeking justice.

Read more of my thoughts on how we can fix this unjust problem, and then share this piece on social media with your friends and family.

Thank you so much for your time and support,

Christina Swarns
Executive Director
Innocence Project