161:(NACDL) has argued that trial penalties strip defendants of their presumption of innocence, pointing out that the "pressures defendants face in the plea bargaining process are so strong even innocent people can be convinced to plead guilty to crimes they did not commit". The Association argues that this casts doubt "on the assumption that defendants who plead guilty do so voluntarily".
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right to "a speedy and public trial". A 2015 statistical analysis of federal cases by Andrew
Chongesh Kim concluded that defendants who exercise their right to trial are penalized with sentences 64% longer than they would have received had they accepted a plea deal. Kim argues that this makes trial
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The trial penalty is the "discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial". Many plea bargains require that the defendant waive certain constitutional rights, such as the right to challenge
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with a system of plea bargains. Trial penalties, they point out, impose such harsh sanctions on choosing to go to trial—with prosecutors sometimes threatening multi-decade prison sentences if a plea deal of only a few years is not accepted—that trial penalties amount to
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123:(NACDL) has been a particularly harsh critic of the trial penalty, arguing that it is "now so severe and pervasive that it has virtually eliminated the constitutional right to a trial", which has had the consequence of replacing the system of
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to a lesser charge than would have been brought against them at trial or agrees to plead guilty to the original charge in exchange for a sentence that is less than the maximum possible.
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versus the larger sentence the defendant could receive if they elect to go to trial. It sits at the center of a legal debate over whether trial penalties abridge defendants'
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Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal.
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368:"Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study"
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Devers, L. (2011). Plea and Charge
Bargaining. U.S. Department of Justice Bureau of Justice Assistance. Retrieved from
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301:"The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It"
179:"The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It"
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https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf
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defendants to plead guilty. This coercion, they argue, renders plea bargains unconstitutional.
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193:"An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty"
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64:, with most criminal defendants accepting a plea deal rather than going to trial. At the
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262:"Only 2% of federal criminal defendants go to trial, and most who do are found guilty"
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Critics argue that the trial penalty has the effect of depriving defendants' of their
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The constitutionality of plea bargaining has been repeatedly affirmed by the
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181:. National Association of Criminal Defense Lawyers. 10 July 2018.
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has also called the trial penalty unconstitutional. In the
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by jury "less of a right and more of a trap for fools".
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225:. Administrative Office of the U.S. Courts.
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391:"Most Plea Bargains Are Unconstitutional"
389:Dershowitz, Alan M. (5 November 2019).
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195:. Human Rights Watch. 5 December 2013.
366:Kim, Andrew Chongesh (26 July 2015).
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421:Civil liberties in the United States
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330:Neily, Clark (9 February 2018).
260:Gramlich, John (11 June 2019).
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346:"Bill of Rights Transcript"
280:Legal Information Institute
73:United States Supreme Court
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393:. The Wall Street Journal.
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264:. Pew Research Center.
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