What is the Trial Tax in SC?

You may have heard the phrase “trial tax” before.

Is there a trial tax in SC? If you’ve ever been charged with a crime and considered taking your case to trial, you’ve almost certainly heard of the “trial tax.”

What does it mean?

It’s a fact that, in many cases, you will be sentenced to significantly more time in prison and possibly convicted of more serious offenses than you would have been if you had agreed to plead guilty.

This phenomenon is no accident – it’s been carefully designed and constructed over decades to ensure that people accused of crimes do not insist on their right to a trial and to make it as easy as possible for prosecutors to secure convictions with minimum effort and use of government resources.

The National Association of Criminal Defense Lawyers (NACDL) released a report this year titled, “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” that breaks down the trial tax, the reasons for the trial tax, and how it has resulted in the denial of defendants’ right to a trial by jury in America:

Over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a ‘system of [guilty] pleas’ which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Is There a Trial Tax in SC Federal and State Courts?

I think that most people who do not work in the court system believe that most or a significant portion of cases go to trial, that jurors find the truth in each case, and that the process is fair for defendants and alleged victims – it’s a misconception because almost all cases in both SC state court and federal court end in either a dismissal or guilty plea…

Trial Tax in Federal Court

The federal court system is designed like an assembly line – one after another, groups of defendants, mostly people of color, plead guilty and accept their sentences in SC’s federal courts.


Each group of defendants charged in a conspiracy is expected to “debrief.” For example, in a typical federal drug conspiracy case, each defendant meets with a federal agent and tells the government every time they have bought or sold drugs, what the amounts were, and who they bought drugs from or sold drugs to.

That information is used against their co-defendants, and it is used to prepare indictments for the next group of drug conspiracy defendants that the government will charge – hence the assembly line, self-perpetuating with minimal effort or investigation on the part of government agents.

If you cooperate and go along with the system, you:

  • Get immunity for non-violent offenses that you admit to that you have not already been charged with;
  • May have your charges reduced or limited;
  • May avoid certain enhancements under the federal sentencing guidelines;
  • Get your sentence reduced by two offense levels for “acceptance of responsibility;” and
  • May receive a further downward departure at sentencing for anywhere from one to five offense levels.

Even after you are sentenced, if the information that you provided leads to additional arrests or if you testify in another person’s trial, you may be brought back to court for an additional sentence reduction…

If you do not cooperate:

  • You will most likely be charged with every possible offense that they can charge you with;
  • You will get every enhancement that they can apply to you;
  • You will not get any reduction in sentence for acceptance of responsibility or a downward departure;
  • You will be held responsible for all the activities and drug weights of your codefendants (although this is also true in a guilty plea in federal court, you can expect the amount to increase at trial); and
  • If you are convicted of even just one of your charges, your sentence will be enhanced based on “relevant conduct,” even if it is conduct that you were acquitted of…

It’s easy to see why most federal criminal defendants cooperate and plead guilty, even when they might be innocent: Every person has a right to trial, but, if you exercise that right to trial, the consequences are so severe that most rational people would not go to trial.

So, is there really a constitutional right to trial anymore?

Trial Tax in SC State Courts

Is there a trial tax in SC state courts also? It happens in SC’s state courts, too, although the state courts are not the well-oiled prosecution-controlled machine that exists in our federal system.

In our state courts, there are some judges who do not punish defendants solely for asking for a trial – after a conviction at trial, I have seen judges sentence defendants to the amount of prison time they were initially offered or even less time than they were initially offered.

SC also has circuit court judges who value judicial economy above all else, and who routinely give the maximum sentence following a trial – because it discourages other defendants from asking for trials

Regardless of the trial judge’s sentencing philosophy, however, many prosecutors encourage, and, in some cases, ensure, guilty pleas by over-charging crimes and offering plea deals prior to trial that most defendants would not refuse.

Why Do Innocent People Plead Guilty?

By offering drastically reduced sentences in a plea offer, while threatening to bring the full force of the state down on a defendant if they go to trial, even a person who is not guilty of the charges is likely to accept a plea offer and avoid the obvious risks of trial.

For example, imagine you have been wrongfully accused of violently raping a female acquaintance – you didn’t do it, and you think you can prove that at trial. But, what if the jury disagrees? If the state offers you a probationary sentence with no sex offender registry on a reduced charge, will you risk a 30-year sentence or lifetime registry if you are convicted at trial?

What if you have been charged with a drug trafficking offense that carries a mandatory minimum sentence of 25 years, but the prosecutor is offering a reduced charge with no mandatory minimum?

You believe that you can prove your innocence at trial, or the government can’t prove your guilt, but you’ve also heard that sometimes the prosecutor will find last-minute witnesses who will testify against you in exchange for a time-cut. Do you go to trial and risk a 25-year prison sentence?

Some people do, and some of those people are convicted and sentenced despite their innocence. Many people do not – their fear of incarceration and love of their family forces them to accept an unjust criminal conviction and prevents them from exercising their right to a trial by jury.

Guilty Pleas are Easier for Defense Lawyers

Most commentary on the death of the right to jury trials in America focuses on unethical prosecution tactics or judges who prioritize judicial economy above constitutional rights and fundamental fairness.

What about defense attorneys?

The truth is that criminal defense lawyers are as much a part of the problem as prosecutors and judges – many defense attorneys do not want to try cases. The reasons why vary from one attorney to the next, but, for some:

  • Trials are hard. They are stressful, and they require huge amounts of time for investigation, preparation, and the trial itself. Some criminal defense attorneys identify as “trial lawyers,” and “courtroom brawls” are what they live for. Others, not so much…
  • Lawyers make more money from guilty pleas. Although every criminal defense lawyer should investigate and prepare every case for trial, whether or not they believe it will be a guilty plea, many do not. Flat fees + a large volume of cases + less time spent on each case = more income.
  • Fear for their client. Lawyers who care about their clients face the conundrum of A) wanting an acquittal for their client while B) facing the fear and heartache of seeing their client go to prison if they lose the trial.

For these and other reasons, defense attorneys may “lean on their client” to get them to accept a plea offer and avoid trial – sometimes creating the uncomfortable appearance of prosecutor, judge, and defense lawyer all trying to prevent a defendant from taking their case to trial.

Should a defense lawyer try to talk their client into accepting a plea when they know there is a good chance of conviction at trial? Absolutely. The defense attorney’s job is to win their client’s case. If that doesn’t seem possible, their job may be to protect their client and avoid a prison sentence.

But, defense attorneys also must recognize the line between 1) good advice based on the evidence and 2) coercion – the decision to plead guilty or go to trial is always the client’s decision.

What’s the Answer?

The NACDL report contains a summary of principles and recommendations beginning on page 58, mostly focused on the issues in federal court.

There’s a more simple answer, though – the trial tax will continue, and the Sixth Amendment right to trial will disappear completely, unless judges, prosecutors, defense lawyers, and legislators care about the Sixth Amendment right to trial.

As long as the decision makers in the criminal justice system prioritize judicial economy over constitutional rights, prosecutors value power over fairness, and defense attorneys go along with the system, nothing is going to change…

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone focuses his law practice on criminal defense in SC state and federal courts. If you have been charged with a crime in SC, the government is building their case against you right now – you need an experienced trial lawyer on your side without delay.

Call now at (843) 808-2100 or contact us through our website to find out how we can help.