Putting the Trial Penalty on Trial

11 Pages Posted: 4 Feb 2014

See all articles by David Abrams

David Abrams

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School

Date Written: Summer 2013


The "trial penalty" is a concept widely accepted by all the major actors in the criminal justice system: defendants, prosecutors, defense attorneys, court employees, and judges. The notion is that defendants receive longer sentences at trial than they would have through plea bargain, often substantially longer. The concept is intuitive: longer sentences are necessary in order to induce settlements and without a high settlement rate it would be impossible for courts as currently structured to sustain their immense caseload. While intuitively appealing, this view of the trial penalty is completely at odds with economic prediction. Since both prosecutors and defendants have the ability to reject unappealing settlements, sentences at trial should be nearly the same as those arrived at through pleas. This is a straightforward application of the "shadow of the law" concept articulated by Mnookin and Kornhauser, as well as others. This article attempts to answer two questions relating to the trial penalty. Why is belief in its existence so widespread, given that it is at odds with basic economic theory? Which theory does empirical analysis of actual sentencing data support? I argue that there is a fundamental misunderstanding that is largely responsible for the belief in the trial penalty: the failure to distinguish between conditional and unconditional expected values. I also provide a brief overview of an empirical study that attempts to distinguish between the two theories. The results of that study are surprising and support neither theory-not only is there no evidence for a trial penalty, there appears to be a trial discount!

Keywords: Criminal sentencing, statistics, trial outcomes, pleading, deal, outcome, regression, expected sentence, decision making

JEL Classification: K14, K40, K41

Suggested Citation

Abrams, David S., Putting the Trial Penalty on Trial (Summer 2013). Duquesne University Law Review, Vol. 51, P. 777, 2013, U of Penn, Inst for Law & Econ Research Paper No. 14-2, Available at SSRN: https://ssrn.com/abstract=2390233

David S. Abrams (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

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