Against Trial Penalties

Abstract

The chapter offers a sustained argument against trial penalties. The chapter begins with discussion of the normative basis of the right to a trial, emphasizing the private and public goods produced by trials. Trial penalties are typically forms of unilateral retaliation by state officials against criminal defendants whose trials are deemed by them to be without value. Yet the officials who make such judgments often do so without adequate epistemic warrants. Even on the assumption that they will occasionally have grounds for believing that defendants’ trials were “needless,” the imposition of longer post-trial sentences is shown to be an unjustified response by state officials. Trial penalties, unlike waiver rewards, are coercive and often impose disproportionate punishment on offenders. But plea bargaining can persist and even thrive if state officials can offer waiver rewards to entice defendants to admit their guilt.