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 Holmes & The Trial Penalty 

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Michael Santos

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The “trial penalty” incentivizes almost all defendants to plead guilty; defendants face much harsher sentences if convicted at trial. The definition of the trial penalty is the enhanced prison penalty for defendants who do not plead guilty.


The criminal fraud trial of Elizabeth Holmes is close to completion. People the world over are watching this criminal fraud trial, and verdict watch will begin in the coming weeks. Will Elizabeth Holmes face the trial penalty if convicted at trial? An interesting question to consider.

There is no question that the trial penalty is a significant criminal justice issue in the United States. While the trial penalty may be unfamiliar to many, those involved in the criminal justice system are amply aware and becoming more vocal. Citizens forgoing their right to a jury trial because the trial penalty undermines the 6th Amendment of the US Constitution.  

What is the trial penalty?

The trial penalty is the significant disparity between the prison sentence offered as part of a plea bargain and the longer sentence imposed if a person gets convicted at trial. The trial penalty is the penalty or ” trial tax” imposed on defendants exercising their right to a criminal jury trial.

The Trial Penalty is Real 

No doubt, in many criminal cases that go the distance, there is a substantial difference between the plea offer before trial versus the actual sentence after trial. This trial penalty, or trial tax,  can be so severe and pervasive that it can undermine a person’s constitutional right to a jury trial. To avoid the trial penalty, criminal defendants have to surrender some fundamental rights essential to a fair justice system, and that is not fair. 

According to the National Association of Criminal Defense Lawyers (NACDL), a person convicted after choosing to have criminal charges adjudicated by a jury ends up with a harsher prison sentence than from a guilty plea before trial. 

Click here for the 2018 Report on the Trial Penalty by the National Association of Criminal Defense Lawyers: NACDL.

Could that really be the case in the US, where the 6th Amendment of the Constitution guarantees a criminal defendant the right to a jury trial? 

The reality is that for most criminal defendants, exercising the right to a jury trial can have negative practical consequences, including facing a significantly longer prison sentence.

The trial penalty incentivizes almost all defendants to plead guilty and keeps the engine of the American criminal justice system humming at top speed. The system could grind to a halt if more defendants went to trial. Many observers claim that harsher punishment for defendants who exercise their right to a jury trial violates the 6th Amendment. 

*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any criminal court case.

Less Than 3% Of Criminal Cases Go To Trial

The trial penalty is the significant disparity between the prison sentence offered as part of a plea bargain and the longer sentence imposed if a person gets convicted at trial.

Pro-Tip: Whether convicted by guilty plea or jury trial, people facing a federal sentencing hearing must know about ways to obtain a better sentencing outcome. Click here for our video on sentencing mitigation:

16 Ways to Mitigate Your Prison Sentence.

The National Association of Criminal Defense Lawyers (NACDL) investigates sentences and other data to determine why less than 3% of federal criminal cases proceed to trial. Our system resolves over 97 percent of criminal cases through plea bargaining.

NACDL’s efforts hope to increase awareness of the trial penalty across the federal and state criminal justice systems. NACDL keeps sounding the alarm–the right to a jury trial is under siege

Public trials are necessary and valuable in any free society ruled by law. Public trials require that the government prove its case beyond a reasonable doubt before a jury. In fact, it is harmful not to have more public trials. For one, the fact that there are so few criminal trials allows the government’s interpretation of the reach of numerous criminal statutes left untested and unquestioned.

Why do most cases never go to trial? It is a vexing question, and there are many reasons. Going to trial is very expensive, for example. It is expensive for the prosecution and more so even for the defendant. However, experts believe that the trial penalty is one reason why most cases never go to trial in the United States.

The statistics for going to trial are intimidating. 

In the federal system, the chances of acquittal or not guilty verdict are not very good, statistically speaking. What percentage of federal defendants are found guilty? Currently, federal prosecutors claim conviction rates above 95%, based primarily on defendants accepting guilty pleas. 

Because the great majority of federal criminal cases never make it to trial, and because of the trial penalty to boot, defendants can be understandably fearful of what happens if you go to trial and lose

*Pro-Tip: What happens if you go to trial and lose is that you will likely receive a harsher prison sentence due to the trial penalty. 

And, when the federal conviction rate in the US is as high as it is, it is not irrational to fear what happens if you go to trial and lose. What is the conviction rate in the US? Between guilty pleas and trials, in US federal courts, the conviction rate was 99.8% in 2015, 99.76% in 2014, and 99.75% in 2013. And the overwhelming portion of the conviction rate in the US comes from guilty pleas.

A recent June 2019 Pew Research Center report confirms how rare federal criminal trials are. Acquittals are even more rare. Only about 2% of federal criminal defendants go to trial, and most who do are found guilty. Click here for the June 2019 Pew Research Stats.

And, what percentage of trials end in conviction, among the 2% that go to trial?  According to Pew Research Center, a whopping 83% of those trials end in some form of conviction, and 17% end in acquittals.

Therefore, when people wonder is it better to take a plea deal or go to trial, one general answer is “rarely,” especially when considering the trial penalty theory

Criminal trials like those of Elizabeth Holmes, the Operation Varsity Blues parents, and others, in which defendants decided to take their cases to a jury trial, are exceedingly rare. For most federal criminal defendants, the odds are heavily stacked against them. The trial penalty adds an additional burden.

Also, to answer is it better to take a plea deal or go to trial, people have to consider the mitigating effects of taking a plea deal. To reduce the risk of receiving the most lengthy prison sentence, and obtain credit for accepting responsibility, a defendant and their counsel may decide to plead guilty. 

*Pro-Tip: In sharing statistics and facts about conviction rates and sentencing factors, we do not intend to advise anyone about what to do in a criminal case. Remember to consult experienced criminal defense counsel when facing a federal criminal investigation or charges. 

Why The Trial Penalty?

Criminal justice experts who acknowledge the trial penalty, point to various reasons. Former federal judge John Gleeson mentions three significant factors in the NACDL 2018 report on the trial penalty.

  1. The growth of mandatory minimum sentencing laws.
    • These one-size-fits-all penalties enable prosecutors to coerce guilty pleas and severely punish anyone who opts for trial.
  2.  Harsh sentencing guidelines.
    • Federal and state sentencing guidelines establish draconian punishment ranges that, like mandatory minimums, pressure individuals into pleading guilty.
  3.  Go-along judges.
    • Too many federal judges go along with the prosecutors’ sentencing recommendations. As it is, prosecutors typically threaten defendants with harsher sentencing recommendations if they force a jury trial. When the prosecutor makes good on such threats and judges go along, the full weight of the trial penalty comes down on the defendant. A more thoughtful and careful approach is needed. When sentencing post-trial, sentencing judges could be more mindful of all sentencing factors so as to achieve a just and fair sentence based on the defendant’s guilt. Sentencing judges could also be more mindful of combatting the notion that the system punishes defendants for deciding to go to trial.Judge Gleeson’s observations support the need for a closer examination of the sentencing disparities between plea deals and trials.


First, we note that recently, two parents in the Operation Varsity Blues scandal were convicted. Their upcoming post-trial sentencing may lend further weight to the evidence on the trial penalty. We will be able to compare the sentences for the defendants who pleaded guilty with the sentences of the two parents who were convicted recently at trial. 

And separately, if the jury convicts Elizabeth Holmes at her trial, that could be an additional data point once she gets sentenced.

As we have previously reported, publicizing some of the most egregious cases is essential to raise awareness about how the trial penalty impinges on the right to a jury trial. 

Anecdotally, we know of many cases where defendants who chose a jury trial received sentences more than ten times as severe as prosecutors had offered during plea negotiations. Not surprisingly, many experts see such outcomes as punitive or even vindictive. Nor does a sentence have to be ten times greater than the pre-trial offer to be an unfair attack on the right to a jury trial. 

One example is a medical doctor who rejected a plea offer of one year in prison for Medicaid fraud. His attorneys said that the doctor rejected the plea offer because he believed he was innocent and he had expert testimony at the trial to back him up. Instead, he received 11 years after the trial. In another case, two businessmen accused of financial fraud declined offers of seven years in prison, but their sentences were 80 years after the trial.

Click here for a video from White Collar Advice discussing why some white-collar defendants plead guilty: Why Do Innocent  White Collar Defendants  Plead Guilty?

The counter-argument from some judges and prosecutors is to deny that harsher sentences post-trial are related to the trial or intended to be excessively punitive. Instead, they argue that people taking a plea deserve leniency and are rewarded for saving the government the expense, inconvenience, and risks of a full-blown criminal trial.

Another justification offered for the glaring disparity in sentencing attributed to the trial penalty is that defendants who plead guilty deserve less time because they show remorse and take responsibility for their crimes. This argument is debatable. As we have said before, defendants can appreciate the reasons for accepting a plea deal without feeling any guilt or remorse in doing so. Among many other rational reasons for criminal defendants to accept a plea bargain are: 

  • Offer is significantly lower compared to statutory guidelines;
  • Prosecutors agreed to drop or reduce charges; and 
  • Legal cost savings. 

Also, prosecutors can reward defendants who waive their trial rights or provide helpful information to the government without seeking excessive sentences for people who choose a jury trial. Rewarding a defendant for cooperation is distinguishable from the trial penalty. 

One of the more egregious examples of the so-called trial penalty occurred in the context of the Foreign Corrupt Practices Act (FCPA). Joel Esquenazi received one of the harshest FCPA sentences ever. His co-defendant Carlos Rodriguez received seven years (also significantly larger than most FCPA sentences). Why?

Because most FCPA defendants quickly plead guilty and cooperate with the Department of Justice (DOJ). However, Esquenazi and Rodriguez exercised their constitutional right to a jury trial and lost at trial. Putting the government through the task of proving their case to a jury proved very costly. 

Going To Trial Is Risky

To be sure, even without the trial penalty, there are many risks of going to trial that a criminal defendant should discuss with legal counsel. The defendant who goes to trial may not receive credit for accepting responsibility at sentencing. Still, the trial penalty exponentially increases the risks of going to trial

Given the trial penalty and many other factors, criminal defendants have to consider whether it is better to take a plea or go to trial. 

` Whether it is better to take a plea deal or go to trial has to be analyzed case-by-case. There are many case-specific benefits of taking a plea deal, depending on the unique circumstances of each case. Like anything else, there are pros and cons for accepting a guilty plea, and there are pros and cons of going to trial. 

To what extent is the trial penalty inconsistent with the right to a fair trial under the US Constitution?

The trial tax or penalty is antithetical to the spirit of the US Constitution, even if it does not violate the letter of the law. Many legal observers argue that the trial penalty is a constitutional violation, that it is a violation of the right to a fair, public trial. Suffice it to say here that the trial penalty appears to severely undermine a person’s constitutional right to a public jury trial. In actuality, the trial penalty discourages defendants from exercising their rights to trial by jury. Defendants who exercise their constitutional right to a jury trial should not get harsher sentences than those who plead guilty. 


The trial penalty undermines the unfettered constitutional right to choose a jury trial. The trial penalty incentivizes almost all defendants to plead guilty because they automatically face a much harsher sentence if convicted at trial. People who exercise their 6th Amendment right to a jury trial should not face additional punishment for doing so.

The trial penalty or trial tax undermines the constitutional right to a jury trial. Judges and prosecutors favor plea bargains because, among other things, plea bargains save judicial and law enforcement time and resources, allowing the wheels of justice to keep turning. If more defendants chose to go to trial, the wheels of justice could grind to a halt. 

However, speed and efficiency come at a cost. Many people plead guilty to avoid the possible harsher sentence if convicted at trial. In addition, innocent defendants plead guilty. Sometimes, innocent defendants plead guilty to lesser charges to avoid the risk of being found guilty at trial. 

Whether a person pleads guilty or takes a case to trial, Prison Professors, an Earning Freedom company, helps clients develop a sentencing mitigation plan to obtain better outcomes.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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