In 2016, 97.3% of defendants in the federal criminal justice system conceded guilt. This means that less than 3% of defendants exercised their constitutional right to trial. The vast majority of a criminal defense attorney's time is dedicated to plea bargaining - we negotiate with prosecutors to reach an acceptable outcome for clients. Plea negotiations are an important tool for defendants. However, when a defendant wishes to go to trial, is he or she punished for doing so?
The "trial penalty" is the discrepancy between the sentence offered during plea negotiations and the sentence a defendant faces after trial. Often, defendants going to trial will receive a much harsher sentence compared to what the sentence might have been following a guilty plea. In 2015, in most primary offense categories, the average post-trial sentence a defendant received was more than triple the average post-plea sentence. A majority of the time it is in the defendant's best interest to accept a plea. But it is fundamentally unfair that contesting evidence and maintaining innocence results in a harsher sentence.
