After a trial in 2018, Seattle Municipal Court Judge Adam Eisenberg gave a man 180 days in jail for the misdemeanor crime of disclosing someone's naked photos without consent. That sentence was more than 10 times longer than anyone else in Seattle had received for committing the same offense. Defense attorneys argue that Eisenberg only handed down the harsh sentence because the defendant took the case to trial rather than take a plea deal, which amounted to him levying an unconstitutional “trial tax” against the defendant.

Eisenberg doesn’t exactly deny the accusation. In an email, he repeated the explanation he gave at the sentencing hearing, arguing that he based his decision on the additional information he learned about the crime during the trial.

No court will ultimately decide on the issue because the defendant chose not to appeal the sentence, but Pooja Vaddadi, a public defender campaigning for Eisenberg’s seat on the bench, said cases like this reveal Eisenberg’s tendency to side with prosecutors instead of acting as a check on their authority, which led her to run in the first place. 

Vaddadi isn’t alone in that criticism. A recent survey of King County Bar Association attorneys who appeared in his court rated him the lowest of all Seattle Municipal Court judges for “Integrity and Impartiality.”

“Oh My God, That’s a Trial Tax.”

Though a court won’t adjudicate this situation, Eisenberg’s political opponent isn’t the only person who thinks he threw the book at a defendant just for exercising his right to a fair trial. 

After hearing a recording of the case’s sentencing hearing, Stephen Richie, a criminal defense attorney with more than a decade of courtroom experience, said the defendant’s choice to take the case to a jury played a significant role in Eisenberg’s harsh sentence. 

Over the phone, Richie initially expressed skepticism that any recording of a hearing could prove that a judge penalized a defendant simply for exercising his constitutional right to a jury trial. After all, Richie said, it’s fairly difficult to know what goes through a judge’s mind when making decisions, and a lot of factors can influence the sentencing process.

Then he heard the tape. 

After listening to Eisenberg’s initial line of questioning during sentencing, Richie told me he said to himself, “Oh my god, that’s a trial tax.” 

Richie said his certainty comes from the extreme disparity in sentencing between this defendant and others. Eisenberg gave this defendant 180 days in jail, but the longest sentence that the worst offender of this crime has ever gotten was 16 days.

In Richie’s view, Eisenberg revealed his hand when his first question to the defense attorney at the hearing focused on whether any of the prior convictions for this crime involved a trial. They had not–every other defendant had taken a plea deal. Asking about those previous deals and then handing down a much longer sentence to someone who didn’t take a deal is as close to a textbook example of a trial tax as you can find, Richie told me. 

He added that judges should know they aren’t supposed to factor in whether someone exercises their constitutional right to a trial during sentencing. That rule exists for a good reason. If courts don’t discourage judges from using trial taxes, they worry that prosecutors could coerce future defendants into pleading guilty to crimes they didn’t commit just to avoid the risk of an even worse penalty after a loss at trial.

Eisenberg Doubles Down

When asked to explain the relatively punitive sentence, Eisenberg said in an email he didn’t recall the particulars of the 2018 case — though the explanation he did offer almost exactly mirrored the arguments that the recording shows he made at the original sentencing hearing.

In his email, Eisenberg pointed out that the nature of the crime at issue, disclosing intimate images without consent, would have required the victim to testify at trial while having their private pictures shown to the jury. He also argued that a trial allows a judge to learn more information about the impact the crime had on the victim than they do when prosecutors negotiate a plea deal, which in Eisenberg’s view could justify a longer sentence.

That explanation raised Richie’s hackles. He called that argument “a little disingenuous,” and explained that victims can submit an impact statement or address the court in person during sentencing even when defendants agree to a plea deal.

Richie also raised concerns that Eisenberg’s decision to double down on the same rationale that led to the disparately long sentence showed he hasn’t addressed the bias present in that sentencing hearing from 2018.

“If the concerns he was articulating were really his concerns, then the sentence could have been double the previously harshest sentence,” Richie said. “The disparity is really unexplainable to me, personally.”