Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study

The criminal justice system today obtains the vast majority of convictions from guilty pleas because of the rise of plea bargaining and the threat of an increasingly-large “trial penalty,” should defendants choose to exercise their right to jury trial instead of accepting a plea deal. In a prior empirical study, David Abrams concluded that a trial penalty does not exist because plea bargains actually result in longer sentences than trials do. However, Abrams’s study relies upon several significant conceptual and methodological errors. Specifically, Abrams measured the difference between the plea sentence and the trial sentence discounted by the odds of acquittal at trial. An accurate study must remove the effects of that artificial discount, and doing so reveals a positive trial penalty where trial sentences are 0.36 years longer on average than guilty-plea sentences.  Other federal trial penalty studies also severely underestimated the value of the trial penalty by failing to account for the effects of a defendant’s acceptance of responsibility. Using OLS regression to analyze all federal criminal cases from 2006 to 2008, the researchers concluded that defendants convicted at trial receive sentences that are sixty-four percent longer than similar defendants who pled guilty. Some risk-seeking defendants still foolishly pursue trial against their best interests, overestimating their chances of acquittal or insisting upon their innocence.

“[T]he Sixth Amendment right to trial by a jury of one’s peers is protected and sacrosanct. This study, however, demonstrates that the criminal justice system is structured in such a way that extremely few rational defendants would ever stand up and exercise that right. In such a system, trial by jury becomes less of a right and more of a trap for fools.” p. 1250