Is Pleading Really a Bargain?

The oft-used term “trial penalty” is based on the notion that a defendant who chooses to go to trial instead of plead guilty will receive a harsher sentence. This article argues that although the term “trial penalty” has been the basis of a considerable number of significant empirical studies, evidence supporting the theory of a trial penalty is actually nonexistent. In fact, the research in this article reveals the exact opposite effect of a trial penalty: expected plea sentences were fourteen to eighteen months longer than expected trial sentences. This may be due to individuals’ tendency to overestimate the likelihood of receiving a long sentence at trials, or because of the principal-agent relationship between a defendant and thier attorney. Additionally, the length of a judge’s tenure correlates with the level of predictability of sentence lengths, which ultimately influences the plea decision as well. Considering the data presented by this study, the fears surrounding prosecutors’ using harsh trial sentences as a means of coercing defendants to plead guilty may not only be overstated, but entirely unfounded.

“A comparison of the unconditional mean sentence after trial shows that it is substantially shorter than that after plea bargain. . . . [I]ndividuals sentenced through a plea bargain receive sentences 14-18 months longer than those received by individuals sentenced at trial, when controlling for observable characteristics. . . . [T]he majority of the evidence seems to point to the nonexistence of the trial penalty.” p. 220-21