The Trial Penalty: Why Criminal Defendants Often Take a Plea Bargain

June 15, 2021

By Jill K. Sanders, Esq.

Most criminal cases in today’s legal system are resolved by the defendant entering a guilty plea rather than by trial. Why? Because if a defendant goes to trial and is found guilty, he/she will likely receive a harsher sentence than that being offered if he/she pleads guilty. This is called the trial penalty. Here, we discuss the trial penalty and its impact on the criminal legal system.


Why Most Cases are Resolved With a Guilty Plea

Many of those involved in the criminal legal system have committed some offense. Yet there are times when there is an excuse or a defense for their behavior. Other times, a defendant is over-charged – meaning they did one thing, but they are being charged with something more serious. And in a small number of cases, a defendant is totally innocent and wrongfully arrested.

Yet most criminal cases are resolved by guilty plea. A defendant, regardless of the facts, wants to minimize the sentence he/she will face. They know if they try to fight their case with a criminal trial, they will receive a harsher sentence if they’re found guilty. The trial penalty means their sentence will be more than what they’re being offered if they plead guilty. As such, the threat of severe penalties after trial can pressure a defendant to take a plea.

In sum, the key function of the trial penalty is to encourage pleas. It eases the burden on the courts and saves the resources of prosecutors. Moreover, for public defenders who have overly-burdensome caseloads, they may simply not have enough time or resources to take each of their cases to trial – despite the fact that is ultimately the defendant’s decision to do so.


Studies on the Trial Penalty

In federal court, the average sentence for a drug case is three times higher after trial. According to one study, they received a little more than 5 years if they pled guilty, versus 16 years if they went to trial and lost. In another study, for any offense the sentence after trial was 64% longer than those who pled guilty.

Nearly all criminal defense attorneys in New York agree that the trial penalty plays a role in their representation of defendants. Many prosecutors in New York also require appeal waivers as part of a negotiated disposition. In essence, defendants waive the right to challenge the prosecutor’s case. For those who went to trial, two-thirds experienced a trial penalty. In many cases, the trial penalty resulted in a sentence about 50% longer than what was offered in a plea bargain.


The Impact of the Trial Penalty

Some say the trial penalty is coercive and undermines the plea bargaining process. Additionally, by punishing a defendant for exercising his/her right to a trial, many believe this undermines the integrity of the criminal legal system. Moreover, juries have an important oversight function in our legal system. Without trials, their oversight disappears. And having more trials may encourage prosecutors to only charge cases where they know they can truly prove the case.

The trial penalty may also be a factor in mass incarceration. And study after study shows mass incarceration disproportionality impacts people of color and the poor. For example, one study found that black defendants were significantly less likely than white defendants to receive offers of reduced charges, and also more likely to receive sentence offers involving prison time. All in all, black defendants were substantially more likely to be imprisoned than white defendants and were likely to face longer sentences.