Robert Rose made one of the most important decisions of his life in 1995.
Rose was on trial in New York for grabbing a gun away from his mother's boyfriend, then shooting and killing the man. Deep into the case, prosecutors offered him a plea deal. He followed advice from his lawyer and continued with the homicide trial.
"In the end, I was sentenced to 25 years to life instead of the three to nine years that I was offered," Rose remembered recently in an interview from his home in New York. "And I guess my not wanting to take a plea frustrated the judge as well as the prosecutor and as a result, I was punished for, you know, exercising my right to go to trial."
Rose was punished. He spent about three times longer in prison for going to trial — rather than taking the plea. That happens so often in the justice system that it has a name: the trial penalty.
"I've read transcripts in which judges say things like, if you plead before trial, you get mercy; after trial, you get justice," said Martín Sabelli, past president of the National Association of Criminal Defense Lawyers. "That's a threat."
Sabelli said the system is most harsh on Black and brown people, and low-income people — those who tend to have the least power.
"Every day, this results in the virtual extinction of criminal trials from our criminal legal landscape and converts our courtrooms into these ... assembly lines where people are just being brought in one after another in these red, yellow, green, black jumpsuits," he said.
Sabelli and a group of other legal and civil liberties advocates are working to focus public attention on the trial penalty, which they say has contributed to the near disappearance of criminal trials in many places.
In the federal system, about 98% of cases end in plea deals. In big states like Texas and New York, the numbers are similar. And in one county in Arizona, there were no criminal trials at all from 2010 to 2012, according to a recent report from the American Bar Association.
The U.S. Constitution guarantees that people accused of crimes have the right to a trial. But in recent years, trials have become an endangered species.
"That's not what justice should be about," said Miriam Krinsky, a former prosecutor who now directs the reform-minded group Fair and Just Prosecution. "You know, to the extent that there should be some kind of an incentive to plead early and not put survivors or others through the process and the trauma of going to trial, what does that look like? And is something far more modest the right starting point, as opposed to that draconian, three-time increase in a hammer over somebody's head?"
Cully Stimson is another former prosecutor and a senior legal fellow at the conservative Heritage Foundation, where he writes about crime and justice. Stimson said the system works pretty well as it is.
"The fact that many cases result in a guilty plea is not a problem, because in many cases — and I've been a criminal defense attorney — the person is guilty and they're taking advantage of a plea deal that subjects them to less time," he said. "So I don't think there is a trial penalty. I think it's a trial privilege."
Stimson said there are lots of good reasons for defense lawyers to encourage their clients to plead guilty. For example, the clients may have a prior criminal record, and a plea bargain may be their only way to win a shorter prison term.
But the advocates pressing for change say prosecutors have too much power to stack up charges against defendants and create a situation where they face so much prison time that even innocent people feel pressure to strike plea deals.
Rodney Roberts is one of them.
Rodney Roberts said he had 25 minutes to decide whether to take a plea deal
Roberts was just starting out as an adult with custody of his son and a good job at the mall in New Jersey when he was arrested on suspicion of sexual assault and kidnapping in 1996. Months passed. Roberts lost his job and his apartment. His friends and family members kept asking when he would be freed.
Roberts said his lawyer told him to take a plea deal and he had just 25 minutes to decide.
"I felt like I was choosing between two evils," Roberts said.
He wound up pleading guilty — and spending 18 years in custody, both in prison and in civil confinement, before he was exonerated in 2014.
Now he works to help people leaving prison transition back into the community and to lobby for overhauling in the justice system.
"Thousands of these young men, young women, locked up, over-sentenced, pressured into pleading guilty because the system has to make room for the next person they're going to lock up," Roberts said. "They can't just keep the same people stationary because where are they going to put the rest they're locking up?"
Changing the system will be a heavy lift. Most criminal cases are brought at the state and local level, so change would have to happen state by state. Legislatures would have to vote to get rid of mandatory minimum prison sentences. Prosecutors would have to reconsider how they charge defendants and how many charges they bring. And defense lawyers would have to reevaluate the advice they give some clients.
Robert Rose, who spent almost 25 years in New York state prisons after rejecting a plea deal, is finally back home in New York. He said looking back, he would take that deal he was offered in 1995, "because the system isn't a nice place. It's very debilitating. It strips away all of your humanity. It really makes you something bad."
Rose said his mom has dementia. He missed so many years with both of his parents. Now, at the age of 50, Rose said his hopes are modest ones: to listen to the sounds of other languages when he walks down the street, to stroll through the park and to try to do things to help people.
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