An economic analysis of the trial penalty: a comparative analysis of three alternative trial settings

Abstract

The research suggests that there is a penalty for invoking one’s sixth amendment right in a trial. This study uses Tobit models to empirically document the existence of a trial penalty, and we provide estimates of the magnitude of its effect. In a comparative analysis of three alternative trial settings, we find that courts treat defendants differently under alternative sets of rules. Thus, we provide some evidence that defendants might face discrimination in court. We find that the lengths of the sentences of those found guilty in jury trials are 11 years longer than those found guilty in bench trials or those taking plea bargains. Further, we find that women are more likely to be found guilty in bench trials than in jury trials and that prior convictions are directly related to jury convictions and unrelated to bench trials. In addition, gang affiliation is less likely to matter for bench trials.