Is There a Penalty for Going to Trial in Federal Court?

Kevin R. Blackwell, U.S. Sentencing Commission

Is there a penalty for offenders who choose to exercise their constitutional right to trial? This has been posed as one explanation for the decreasing trial rate over the last 40 years. The phenomena is apparent in both state and federal courts. Available data shows that in the federal system, the percentage of offenders who go to trial in criminal cases has decreased from about 15 percent in 1962 to 2.9 percent in 2002. State offenses mirror the federal system as, in criminal cases, the trial rate has decreased from about 15 percent in 1976 to less than five percent in 2001. The decreasing trial rate has also been a concern for courtroom communities. The American Bar Association (ABA) held meetings (titled "The Vanishing Trial") on this topic in December of 2003.

This paper, using federal sentencing data, will try to improve on previous studies in this area by using national data to ascertain the extent of the "trial penalty" in the federal system. Previous studies on this subject have suffered from a lack of generalizable data and a lack of specific controls which may explain the reasons behind the sentencing decision outside of whether the offender went to trial or not. By using the extensive federal sentencing data, it is believed that the problems of the past will not be revisited.

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Updated 05/20/2006