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April 26, 2010

"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation"

The title of this post is the title of this new must-read empirical work available via SSRN and in print in Justice Quarterly. Here is the abstract:

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system’s commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts.  We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures.  Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000-2002, along with aggregate data on federal district court caseload features.

We find that meaningful trial penalties exist after accounting for Guidelines-based rationales for differentially sentencing those convicted by guilty plea versus trial.  Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties.  In addition, trial penalties are lower for those with more substantial criminal histories, and black men.  Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.

April 26, 2010 at 09:23 AM | Permalink


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TLDR, at least for this morning. But the Synopsis doesn't suggest that they looked at superseding indictments for things like 924(c)'s and ACCA, which are very substantial trial penalties apparently in addition to the things the authors studied.

Posted by: Texas Lawyer | Apr 26, 2010 10:16:27 AM

And is a trial penalty actually wrong? I would argue that the reverse is the actual situation, that plea bargainers, for the most part, get a greater discount than is actually warrented if you were to examine the totality of conduct that could be proved to a jury BRD. And the forces that Texas Lawyer brings up would hide that fact if yyou were to just examine the sentencing transcript.

Posted by: Soronel Haetir | Apr 26, 2010 3:43:00 PM

My opinion of a good justice system (Which probably would never happen) would be where there are no plea bargains, and the case is always tooken to court, unless the prosecution drops the case. Also a judicial system where there are no penalties for trial convictions.

Many people are frightened, even when innocent that if they lose (Because they have a in-competent counsel) they will face heavy penalties, rather then bargaining a plea, even though there innocent.

Posted by: N/A | Apr 26, 2010 5:50:06 PM

Posted by: N/A

Do you actually believe such unfortunates make up a substantial portion of those charged?

I've got to agree with Bill Otis on that score, the vast majority plead guilty because they are in fact guilty and know that the prosecution would be able to meet the threshold of beyond reasonable doubt.

If you do believe that there are a substantial percent of defendants who are factually innocent (note I am excluding degree of culpability here) I fail to see how simply forcing every charge before a jury would alleviate your concerns. Such a belief, if well founded, would indicate such a fundamental brokenness to the criminal justice system that I don't see how merely tinkering with the existing procedures could resolve the problems.

Posted by: Soronel Haetir | Apr 26, 2010 6:28:40 PM

i have to agee the numbers i saw years ago put the number of actual innocent individusls convicted at about 10% which is still way way too many. But i do think ALL trials except under limited exceptions should be jury trials. Which is what the CONSTITUTIN requires anyway.

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