The overwhelming majority of criminal defendants in the United States routinely forgo their right to a speedy and public trial by a jury of their peers in favor of entering a guilty plea. Why? Criminal defendants, including health care providers, who face federal charges potentially are very likely to face higher penalties if they go to trial and are convicted (known as the “trial penalty”).
The trial penalty is the result of several factors, but an important one is the Federal Sentencing Guidelines (the “Guidelines”), which reward defendants who plead guilty by reducing the offense level calculation by up to three levels if:
- the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty (two levels); and
- the prosecutor determines that the defendant pleaded guilty early enough to save the government from having to prepare for trial (one level).
Offense levels dictate the recommended sentence. Reductions of even one level can yield significant decreases in a defendant’s ultimate sentence.
On March 10, 2025, The Hon. Jed Rakoff of the United States District Court for the Southern District of New York, issued an opinion, U.S. v. Tavberidze, in which he held that the one level reduction under the Guidelines for saving the prosecutor from having to prepare for trial was an unconstitutional trial penalty.
Judge Rakoff gave two reasons for his decision:
- First, “section 3E1.1 in its entirety effectively penalizes a defendant who, whether innocent or guilty, proceeds to trial based on his decision to exercise his Sixth Amendment right to trial.”
- Second, the fact that the application of the one level reduction requires a motion by the government and is not as an independent factor up to the court “amplifies the pressure exerted on a defendant to plead guilty, rather than proceed to trial.”
Judge Rakoff explained that the failure to plead guilty early enough to save the government from preparing for trial “cannot possibly be an adequate ground” to penalize a defendant for exercising the constitutional right to a trial, or a defendant who needs time to decide whether to exercise that right.
Judge Rakoff’s novel approach of reducing the formal calculation of an offense level by one point, regardless of whether or when a defendant pleads guilty, is a welcome start toward leveling the playing field for defendants who go to trial but are convicted by a jury. The ultimate effect of the Tavberidze decision is uncertain, and it is likely to be appealed by the government. For now, however, it is a step toward mitigating the trial penalty routinely imposed on defendants who take their cases to trial, and it may encourage others to follow suit.
Criminal investigations and prosecutions are among the most serious and potentially life-changing matters one can endure. Investigations and prosecutions of health care providers are uniquely different from other criminal matters because of the complex set of laws, rules, regulations, and other “secondary” or “sub-regulatory” guidance materials to which providers are subject, as well as the collateral impact that investigations and prosecutions have on their licenses and/or credentials. Garfunkel Wild combines its special expertise and command of health care law and compliance with its white collar defense experience to be effective in the only way that matters: getting to the right result for the client.
Should you have any questions regarding the above or need representation in a potential criminal matter, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or email us at [email protected].