The Trial Penalty
The trial penalty – the massive difference between the sentence criminal defendants typically receives after a plea bargain and the much higher sentence defendants typically receive if they are convicted at trial – is one of the most significant characteristics of the modern American legal system.
At the federal level, trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher. This sentencing differential is extremely coercive. As a result only 2-3% of federal convictions are the result of trial. The rest are plea bargains. The trial penalty is so coercive that it causes some innocent people to plead guilty.
NACDL Advocacy Webinars Champion© Articles
NACDL Reports & Resources
The New York State Trial Penalty: The Constitutional Right to Trial Under Attack (March 2021)
The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 2017)
Pleas resources in the NACDL Resource Center
Other Reports & Scholarship
- American Bar Association Criminal Justice Section Plea Bargaining Task Force report (February 2023)
- The Disappearing Trial, Fair Trials International (April 2017, updated January 2022)
- The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End: April-June double issue of the Federal Sentencing Reporter, edited by then-Executive Director Norman L. Reimer and then-First Vice President Martín Antonio Sabelli (Volume 31, Issue 4-5, summer 2019)
- An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty, Human Rights Watch (December 2013)
End The Trial Penalty Coalition
End the Trial Penalty is an ideologically diverse alliance of individuals and organizations who each believe the Trial Penalty prevents us from achieving a truly just society. The End the Trial Penalty Coalition will eliminate coercive elements of plea bargaining to restore our fundamental constitutional rights including the right to jury trial.
Plea Bargaining Institute
The Plea Bargaining Institute (PBI) is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations, and practitioners working in the plea bargaining space to share knowledge and collaborate.
Trial Penalty Survey
NACDL is seeking to learn about more individual encounters with the trial penalty in the American criminal legal system, whether on the federal or state level. If you are interested in sharing a trial penalty story, please take our short survey.