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The Trial Penalty is a Myth ... Or is It?

By William Peacock, Esq. on February 21, 2014 | Last updated on March 21, 2019

Everything you know is a lie.

Remember criminal procedure? Remember the lesson, and the trope, that there is a "penalty," in terms of sentences received, for defendants who take trials instead of pleas.

If a recent study is to be believed, it's apparently an urban legend. Maybe.

Empirical Study: It's All a Lie

PrawfsBlawg points out a study, by David Abrams of Penn, that claims to show that the trial penalty is a mere myth. He argues that the myth comes from the availability bias -- lawyers remember the tough sentences imposed after trials more than they remember the quick pleas.

Except, Methodology

In the comments to PrawfsBlawg's highlighting of the Abrams study, a reader pointed out Al Alschuler's critical evaluation of Abrams' methodology.

Alschuler notes that Abrams averaged in acquittals as "zeros" in post-trial sentences in order to reach his results. However, the source of his acquittals includes cases dismissed by the state, inactive cases due to fleeing felons, and extradition proceedings.

"Abrams' study thus reveals that defendants who abscond receive lower sentences than defendants who plead guilty -- that is, until they are caught. It also teaches us that extradited defendants receive lower sentences than defendants who plead guilty -- that is, until they are tried in the jurisdictions to which they are sent. And it reminds lawyers never to urge clients to enter plea agreements when prosecutors are willing to dismiss their cases outright."


Which study is more convincing? We're leaning towards Anschuler's opinion, criticizing Abrams' methodology. Then again, his viewpoint goes along with our long-standing beliefs.

Nonetheless, there is other evidence to support the notion that those who exercise their trial rights are getting a raw deal. An example provided by another commenter points to a Human Rights Watch report, "An Offer You Can't Refuse -- How US Federal Prosecutors Force Drug Defendants to Plead Guilty." The report includes one especially-damning statistic:

Average sentence for federal drug defendants:

Plea -- 5 years, 4 months
Trial -- 16 years

The trope lives for now, though we're curious to see if Abrams will adjust or defend his methodology.

How about you? Do you buy into the "trial penalty" theory? Tweet us your thoughts @FindLawLP.

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