The Plea Bargaining Blog

In March 2025, Judge Jed Rakoff of the Southern District of New York issued an opinion challenging the constitutionality of what has been described as the "trial penalty." From the opinion: Why do so few cases go to trial? One reason is the so-called “trial penalty.” Since a prosecutor typically charges -- and is currently required to charge at the outset -- the most serious crimes she can prove, a plea bargain to a lesser charge reduces the risk of the often much higher penalty a defendant would face if convicted at trial. And given the prevalence of legislatively-prescribed mandatory minimum prison terms, there is little a judge can do about this in many cases. Moreover, even in those cases where the charges do not carry mandatory minimum prison terms, the Sentencing Guidelines (“Guidelines”) effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty,...

Much attention has been focused in recent years on sentencing differentials in the plea bargaining context. The term sentencing differential captures the difference in sentence received by defendants who proceed to trial versus the sentence of codefendants or similarly situated defendants who plead guilty. For example, a Vera Institute Report from 2020 entitled  In the Shadows  noted that the odds of incarceration were 2.7 times greater for those who went to trial and the sentences in their review were 57 percent longer.  See  Ram Subramanain et al, Vera Inst. of Just.,  In the Shadows: A Review of the Research on Plea Bargaining  (Sept. 2020). Many have argued that this represents a punishment for exercising one's Constitutional right to trial by jury, leading some to call this phenomenon the "Trial Penalty."  Academics have been focusing a light on this phenomenon for some time and there are now several cases indicating that the judiciary is listenin...