Welcome back to Attorney Paz’s rants of a criminal defense attorney! This week, I want to talk about the trial tax. Check out my information below about the trial tax, or watch my video on my Facebook page.
Post Conviction Cases
I represent a lot of people who are post-conviction, which means they were either tried and found guilty or they pleaded guilty and were sentenced and now they’re collaterally attacking that conviction. And a lot of the times they say, “well, you know, my lawyer told me to plead and I didn’t really want to plead, and I should have fought it, and all my lawyer wanted to do was plead me out.” And then on the flip side of that, if the person is sentenced after being convicted after a trial, “my lawyer never told me about the trial tax and that I could have been sentenced to way more time.”
What is the Trial Tax?
The trial tax is a phenomenon that you’re not going to find in any statute or law book. You’re more likely to find it in law review articles and from criminal defense attorneys complaining about it. But essentially what it says is that pretrial, the state makes you an offer to resolve your case, and that offer will almost always be less than what you will receive in the event that you are convicted after a trial.
So, say you are charged with three offenses, and the maximum exposure for those offenses is 20 years incarceration because they can run back-to-back, or consecutively, in the event you are convicted after a trial. You go to a pretrial and the offer for you to resolve your case is five years, which obviously is a lot less than the 20 that you are exposed to. But, the problem is is that you’re taking the risk in the event that you plead not guilty and continue the case to a trial, of being convicted of all of the offenses, and having those offenses run back-to-back for the 20 year maximum.
What I want everybody to understand is this is something where the criminal defense attorney argues that this is the value of the case pretrial, five years, and this value should be the same after a trial. But the state attorney argues that this is not the value of the case, rather it’s a discount. The prosecutor says they are giving you a discount because they don’t want to put their victim through the trauma of a trial, or it takes a lot of time and resources to bring a defendant to a trial and to conserve those resources and save the victim from trauma, they’re going to give you this discount.
And we argue until we’re blue in the face about it. But if I recommend to you, as your attorney, I’ve evaluated the facts of your case, the evidence, and I, in my professional opinion, say to you, “you should plead because I think you’re likely to be convicted after a trial,” I’m not doing it because I want to take your trial rights away. I’m doing it because I want to save you from going to jail for way more time because you’re then going to be exposed to this trial tax.
That’s my rant for the day, if you want to talk to me about that further, feel free to email me at [email protected] and as always take care, don’t get arrested, and see you soon.