Trial Penalty Research Articles

The Case for a Trial Fee: What Money Can Buy in Criminal Process

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place

Plea Discounts or Trial Penalties? Making Sense of the Trial-Plea Sentence Disparities

There is a consensus that defendants who plead guilty generally receive less harsh sentences than similarly-situated defendants convicted at trial. However, there is less consensus on how to characterize this disparity in the sentence. Some researchers refer to the disparities as “trial penalties,” whereas others refer to them as “plea discounts.” We contend that the two terms have different theoretical backgrounds and underlying assumptions. As a result, the theories require different modeling strategies, and can lead to different predictions on the relationship between the disparity and some key case characteristics.We start by differentiating the two perspectives theoretically. We then present an empirical analysis on defendants in New York State to substantiate our theoretical arguments. We demonstrate that the estimates of the trial-plea disparities depend on the assumption of the default, as estimates of the trial penalties differed considerably from the estimates of the plea discounts.

Sentencing Disparities

Abstract Criminal justice stakeholders are strongly concerned with disparities in penalty outcomes. Disparities are problematic when they represent unfounded differences in sentences, an abuse of discretion, and/or potential discrimination based on sociodemographic characteristics. The Article presents an original empirical study that explores disparities in sentences at two levels: the individual case level and the regional level. More specifically, the study investigates upward departures in the United States’ federal sentencing system, which constitutes a guidelines-based structure. Upward departures carry unique consequences to individuals and their effects on the system as they lead to lengthier sentences, symbolically represent a dispute with the guidelines advice, and contribute to mass incarceration. Upward departures are discretionary to district courts and thus may lead to disparities in sentencing in which otherwise seemingly like offenders receive dissimilar sentences, in part because of the tendency of their assigned judges to depart upward (or not). The study utilizes a multilevel mixed model to test the effects of a host of explanatory factors on the issuance of upward departures at the case level and whether those same factors are significant at the group level-i.e., district courts-to determine the extent of variation across districts. The explanatory variables tested include legal factors (e.g., final offense level, criminal history, offense type), extralegal characteristics (e.g., gender, race/ethnicity, citizenship), and case-processing variables (e.g., trial penalty, custody status). The results indicate that various legal and nonlegal factors are relevant in individual cases (representing individual differences) and signify that significant variations across district courts exist (confirming regional disparities). Implications of the significant findings for the justice system are explored.

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

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.

Plea bargaining and the trial penalty in Canada

This article takes an in-depth look into sentencing and into a concept that seems to be inherent within it, that is, the trial penalty. It seeks to answer the question "Should there be a trial penalty?". In doing so, it begins by analysing the pros and cons of plea bargaining and argues that the weight of the disadvantages of the process, taken together with the need to respect entrenched constitutional rights regarding the presumption of innocence and the right to a fair trial, mean that a trial penalty should not exist. It is then argued that while the intuitive existence of an explicit trial penalty is accepted by many within the system, there is a lack of empirical evidence to prove said existence. The article concludes by offering possible solutions to various problems associated with the plea process, as it is currently practised.

Is Pleading Really a Bargain?

A criminal defendant's decision of whether to accept a plea bargain is one with serious consequences both for his or her immediate and long‐term future. Conventional wisdom suggests that defendants are better served by entering into a plea bargain, to avoid what is known as the “trial penalty.” In this article I present evidence that this notion is likely mistaken. In OLS regressions using data from Cook County state courts, I find that a risk‐neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain. I also employ an IV approach to the question and, while the instrument is weak, the results are consistent with the OLS: defendants are better off going to trial.

Is Plea Bargaining in the “Shadow of the Trial” a Mirage?

It has been well established that a “plea discount” or “trial penalty” exists, such that defendants who plead guilty receive significant sentencing discounts relative to what they would receive if convicted at trial. Theorists argue that the exact value of this plea discount is determined by bargaining “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. In trials, the strength of the evidence against defendants greatly impacts the probability of conviction. In the present study, we estimate the probability of conviction at the individual level for those who pled guilty. We find that, contrary to the shadow of the trial model, evidentiary factors either do not impact or negatively impact the probability of conviction, which stands in stark contrast to the impact evidence has at trials. These findings suggest that plea bargain decision-making may not occur in the shadow of the trial.

A Moral Defense of Plea Bargaining

This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, that fact would not redeem plea-bargaining if it were, as the critics claim, unjust. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be in the first place thrust upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that better moral answer by focusing on several key critical arguments. Specifically, this paper offers original arguments challenging the critical claims that plea bargaining leads to the conviction of too many innocents (the innocence problem); that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases (the trial penalty problem).

The Trial Penalty and Jury Sentencing: A Study of Air Force Courts-Martial

The sentencing empirical literature generally supports the notion that most defendants plead guilty because judges impose more severe sentences for those who assert their Sixth Amendment right to a jury trial. Whether this trial penalty effect is present in jury sentencing jurisdictions has been rarely investigated. King and Noble (2004, 2005) presented evidence suggesting that in practice, jury sentencing assists prosecutors and judges in maintaining a trial penalty or plea discount system. The present study investigates whether a trial penalty exists in the military—a jury sentencing jurisdiction that offers jury sentencing after a guilty plea as well as a trial. Using Air Force court-martial data from 2005–2006, the study finds no trial penalty effect and that juries are less likely to impose severe types of punishment compared to judges. The study discusses implications for public policy, theory, and future research.

The Role of Evidence in the Value of Plea Bargains

It has been well established that a “plea discount” or “trial penalty” exists, such that defendants who plead guilty receive significant sentencing discounts relative to what they would receive if convicted at trial. Theorists argue that the exact value of this plea discount is determined by bargaining “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. In trials, the strength of the evidence against defendants greatly impacts the probability of conviction. In the present study, we estimate the probability of conviction at the individual level for those who pleaded guilty. We find that, contrary to the rational choice model, evidentiary factors either do not impact or negatively impact the probability of conviction, which stands in stark contrast to the impact evidence has at trials. These preliminary findings suggest that plea bargain decision-making does not occur in the shadow of the trial.

Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system's commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts. We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures. Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000–02, along with aggregate data on federal district court caseload features. We find that meaningful trial penalties exist after accounting for Guidelines‐based rationales for differentially sentencing those convicted by guilty plea versus trial. Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties. In addition, trial penalties are lower for those with more substantial criminal histories, and black men. Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures.Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs… ‐ An assistant U.S. attorney ‐

VARIATION IN TRIAL PENALTIES AMONG SERIOUS VIOLENT OFFENSES*

We examine the differences in the sentencing of those who plead guilty and those convicted by jury trial among defendants convicted of serious violent offenses. Drawing from a focal concerns and court communities perspective on court decision making, we develop several hypotheses about jury trial penalties for serious violent offenders, and how such penalties may vary by offense characteristics, defendant characteristics, and court contexts. Our hierarchical models using Pennsylvania sentencing data from 1997 to 2000 reveal that defendants are substantially penalized if they exercise their right to a jury trial and then lose. Furthermore, this jury trial penalty is not evenly assessed, but depends on the seriousness and type of offense, defendant criminal history, and court contextual characteristics such as caseload, court community size, local violent crime rates, and the size of local black populations.

Trial Distortion and the End of Innocence in Federal Criminal Justice

INTRODUCTION 80 I. GUILTY PLEAS THAT RESOLVE CASES BUT NOT QUESTIONS 87 A. Federal Guilty Plea Growth Spurts 88 B. Plea Bargain Theories, Looking High and Low 91 1. Micro-Level Intentions 92 2. Macro-Level Social Purposes 97 II. ACQUITTALS AS A WARNING 100 A. Federal Acquittal Rates and the Guilty Plea Connection 101 B. Acquittals and the Other Displaced Outcomes 103 C. The Mid-Level Trial Distortion Theory 106 1. Trial Distortion and Trial Penalties 107 2. Are Lost Acquittals and Dismissals Trial Distortions? 112 3. The Accuracy Hypothesis 114 III. WHAT MADE FEDERAL ACQUITTALS DISAPPEAR? 116 A. Case Volume 117 B. Legal Complexity and Defense Counsel in the 1950s and 1960s ........122 C. Crime of the Decade 125 D. Sentence Severity and Trial Penalties in the 1990s 129 E. Prosecutor Power as the Leading Acquittal Culprit 134 IV. LEGAL ENVIRONMENTS HOSTILE TO INNOCENCE 137 A. Environmental Audits 139 B. Trials and Tribulations by the Numbers 146 C. The Sentencing Law Nexus 150 CONCLUSION 154 APPENDIX 156

Community and the trial penalty: An analysis from 40 jurisdictions

Most scholarly literature indicates defendants are penalized if they decide to stand trial rather than plead guilty. Using data from 40 jurisdictions during 1992, a multiple regression analysis indicates that indeed choosing trial does tend to lengthen sentences. Sentences also tend to be longer in communities with more conservative ideologies and greater degrees of income inequality. These relationships persist even when controls are introduced for crime type and characteristics of the defendant.

An analysis of the “jury trial penalty” and its effect on black and white offenders

A number of studies have shown that defendants who request a jury trial are sentenced more harshly than defendants who plead guilty or request a bench trial. This paper continues this line of research and examines the effect of the jury trial penalty on black and white defendants charged with violent felonies in Detroit Recorder's Court. We hypothesize that jury defendants of both races will be penalized but that the penalty will be more severe for black than for white defendants. The results of our analysis provide support for the first part of the hypothesis. Jury defendants were more likely than nonjury defendants to be sentenced to prison; they also received considerably longer prison sentences. Our hypothesis that judges would impose a harsher penalty on black defendants than on white defendants, on the other hand, was not confirmed.