Nobody accused of a federal crime should be penalized for exercising their Sixth Amendment right to trial. And yet, because of the trial penalty, that happens all too often.
The trial penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.” At least in part because of the trial penalty, federal criminal trials are on a steep decline. Thirty years ago, 20% of federal criminal cases went to trial. Today, fewer than 3% of federal criminal cases result in a trial, and more than 97% of criminal cases are resolved by plea. As the National Association for Criminal Defense Lawyers (“NACDL”) has accurately observed: “[t]he Sixth Amendment right to trial [is] on the verge of extinction.”
The trial penalty can be traced back to the sentencing reform push of the 1980s, which led to the creation of mandatory minimum sentencing provisions and the sentencing guidelines, and in turn, more powerful prosecutors and less powerful judges with more limited discretion. Charge and fact bargaining, excessive guidelines ranges, departure provisions conditioned on pleading guilty, and statutory mandatory minimums, are all key reasons for the emergence of the trial penalty. For example, rather than reserving mandatory minimum sentencing provisions for the most culpable defendants, prosecutors have at times used them “to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.”