One of the major criticisms of American plea bargaining is that it punishes offenders for exercising their constitutional right to demand proof of guilt at trial. The Supreme Court has suggested that if this occurred it would be unconstitutional, stating that “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort” (North Carolina v. Pearce, 1969). The standard reply to this criticism is to deny that there is any trial penalty; instead, the argument goes, offenders who plead guilty are being given “concessions” as a reward for admitting guilt and waiving their trial rights (American Bar Association, 1997).
So, which is it? Does the distinction matter? If it does, can we find ways to actually identify trial penalties when they occur? And once we’ve identified them, is there any practical way to prevent them? I maintain that the distinction does matter, that plea bargaining does routinely produce trial penalties, and that there are things we can do through sentencing-law and other reforms to reduce the frequency and magnitude of such penalties.
Why the Distinction Matters
Put simply: it is never just to punish a person more than their criminal behavior merits, but there are often good reasons to punish them less (Frase 2013; Morris 1974). This normative asymmetry pervades modern systems of criminal justice, both as a matter of formal law and in practice. For example: in most cases there is a maximum allowed sentence but no minimum; at trial defendants must be proved guilty beyond a reasonable doubt (which, in contrast to a preponderance-of-evidence rule, presupposes that wrongful conviction is much worse than wrongful acquittal); at sentencing many defendants receive fully-suspended sentences that in most cases are never executed; and in most sentencing guidelines systems downward departures far outnumber upward departures.
How to Tell If the Trial Sentence is a Penalty
Similar issues arise in other jurisprudential contexts: is differential treatment to be seen as an offer of help to some, or a threat of harm to others? For most questions like this, the answer requires one to identify a baseline of fair and just treatment. In this case, the penalty/concession distinction requires us to decide whether the higher trial sentence is deemed to be deserved and appropriate (at least relative to other crimes and offenders, in the context of the scale of punishment severity applied in this jurisdiction), or whether the trial sentence is excessive and was deliberately inflated with the expectation that the vast majority of offenders will plead guilty and receive a more appropriate level of punishment.
I believe the trial-penalty interpretation is far more likely to be the case. In any system in which most defendants are provably guilty and are expected to plead guilty, where prosecutors have strong bargaining leverage via severe authorized penalties, and where almost all defendants do in fact plead guilty, it is likely that plea sentences will come to approximate what officials view as appropriate levels of sanction severity (or will be closer to appropriate levels than trial sentences are). The relatively rare cases of trial conviction therefore produce unjustly severe sanctions that are rationalized by their plea-inducing power and by our dislike for guilty people who refuse to admit their guilt. In short: plea bargaining involves threatened and occasionally imposed trial penalties above the just sentencing level; sentences given to guilty-pleading defendants provide little real mitigation, and certainly much less mitigation than defendants are told they are getting.
What We Can Do To Avoid or Lessen Trial Penalties
Guilty pleas typically reflect sentence and/or charge bargaining, both of which must be reformed in order to lessen the frequency and size of trial penalties. In the case of sentence bargaining, one solution is to adopt sentencing guidelines modeled after those found in Minnesota and several other states (Frase 2013; Robina Institute 2016). In such a system recommended, typical-offense sentences are largely if not entirely based on historical sentencing patterns, and are crafted so as to not increase prison populations (neither of those drafting criteria was used to develop the federal guidelines). Under this approach the recommended sentence for all offenders in a given category will be close to the sentence previously given to defendants who pleaded guilty (whose overwhelming numbers largely determine prior “average” sentences). Of course, judges and attorneys in guidelines states still find ways to use sentence bargains to reward defendants who plead guilty, for example: by using the bottom of the recommended guidelines range for guilty pleaders and the top for those who go to trial; by more often granting downward departures in guilty plea cases). But the magnitude of these adjustments, and thus of trial penalties, is likely to be less than under a system without such sentencing guidelines; in those systems, prosecutors and judges routinely threaten and impose severe prison terms within high statutory maximums.
Charge bargaining and its resulting trial penalties are harder to control, but control is essential. Such bargains are widespread, and have the potential to produce even larger trial penalties than sentence bargaining; moreover, if charge bargaining is not regulated it is likely to become even more frequent in a jurisdiction that adopts sentencing guidelines (as recommended above), since guidelines constrain the alternative of sentence bargaining. Here are some mechanisms that can be used to prevent or limit charge-driven trial penalties:
- Abolish mandatory-minimum sentencing laws – Such laws produce enormous plea-trial disparities and trial penalties; many prosecutors admit that the severe mandatory sentences given after trial under these laws are excessive and only justified as a way to induce pleas.
- Avoid or sharply limit sentencing rules based on unproven, “real” offenses (the federal relevant conduct rules were supposed to curtail charging disparities, but may have actually increased them).
- Place limits on consecutive sentencing of multiple counts – “Horizontal” charge bargaining (offering to drop collateral counts) can result in huge plea-trial disparities and trial penalties, if judges have and exercise broad discretion to impose consecutive sentences.
- Impose a pretrial charging cut-off – At some point before a guilty plea may be entered the prosecution must select the charges it would take to trial, regardless of defendant’s plea. This encourages reduction in the number and/or severity of charges to those that the prosecution deems essential, thereby eliminating the worst plea versus trial charge and resulting penalty disparities.
