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 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.


As the rare criminal fraud trial of Elizabeth Holmes gets underway, it is a good time to reflect on a striking characteristic of the American criminal justice system, the trial penalty. Indeed, the trial penalty is unfamiliar to many people in the system. Moreover, it seems at odds with the 6th Amendment of the US Constitution.  

In effect, according to the National Association of Criminal Defense Lawyers, 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 by the National Association of Criminal Defense Lawyers: NACDL).

But how could that be so when the 6th Amendment of the United States Constitution guarantees a criminal defendant the right to a jury trial? 

For most criminal defendants, exercising the right to a jury trial can have negative practical consequences. Indeed, there are rarely criminal jury trials in America today.

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 court case.


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 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 a free society ruled by law. Public trials benefit the legal system; they require the government to prove its case beyond a reasonable doubt before a jury. Overall, 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.


Among those who recognize the trial penalty, there are various reasons why. Former federal judge John Gleeson outlined three significant issues in his Introduction to the National Association of Criminal Defense Lawyers’ 2018 report on the subject:

  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 judges simply go along with the prosecutors’ sentencing recommendations. As such, judges inflict harsh penalties when defendants demand and lose their right to a trial, instead of imposing a sentence proportionate to guilt. 

Judge Gleeson’s observations support the need for a closer examination of the sentencing disparities between plea deals and trials.


Advocates who claim that the trial penalty violates the US Constitution seek to publicize some of the most egregious cases. In some cases, defendants who decline a plea bargain and are guilty after trial can receive sentences more than 10 times as severe as prosecutors had offered during the pre-trial plea negotiations. 

In one case reported in the Wall Street Journal, a doctor’s plea offer was one year if he pleaded guilty to Medicaid fraud, but he received 11 years after the trial. 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. In another case, two businessmen accused of financial fraud declined offers of seven years in prison, but their sentences were a staggering 80 years after the trial.

Some judges and prosecutors deny that harsher sentences are, in fact, trial-related or punitive. Instead, they focus on leniency and the reward a defendant gets for saving the government the expense, inconvenience, and risks of a trial.

Another justification for the glaring disparity is that defendants who plead guilty deserve less time because they show remorse and take responsibility for their crimes. This argument is debatable. Defendants can appreciate the reasons for accepting a plea deal without feeling any guilt or remorse in doing so. 

Indeed, among many other rational reasons for criminal defendants to accept a plea bargain are: 

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

Also, prosecutors can reward defendants who waive their trial rights and/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 7 years (also significantly larger than most FCPA sentences). 

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. Putting the government through the task of proving their case to a jury proved very costly. 

Multiple defendants in a massive bribery scheme involving over $100 million in bribes to Nigerian foreign officials received an average sentence of 2 years for their conduct. They pleaded guilty and cooperated with the DOJ. The convictions of Esquenazi and Rodriguez involved payments of $890,000 for bribes to alleged Haitian foreign officials.

Experts comparing these two FCPA cases point out that Esquenazi and Rodriguez’s conduct in the Haitian officials’ bribery paled compared to the Nigerian $100 million bribery case. Still, Esquenazi and Rodriguez received a significantly harsher sentence in large part because they chose to go to trial.


The trial penalty incentivizes almost all defendants to plead guilty because they automatically face a much harsher sentence if convicted at trial. 

The trial penalty should not be so. While the criminal justice system is right to reward defendants who accept responsibility early, plead guilty and even cooperate with the government, it should not do so at the expense of others who rely on their 6th Amendment rights. In practice, the trial penalty discourages defendants from exercising their rights to trial by jury.

When deciding whether to plead guilty or go to trial, people should consult with experienced criminal counsel. Sentencing mitigation experts can work together with legal counsel.

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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