Mimesis Law
1 March 2021

There’s No Trial Tax; There’s A Plea Discount

Jan. 29, 2016 (Mimesis Law) — The supposed horror of the so-called “trial tax” has become the hot topic (again). The idea is that defendants who insist on a trial end up with higher sentences than those who accept a plea deal. This notion of a trial tax is accompanied by much hand-wringing about how defendants are “forced” to accept these “unfair” deals.

For example, Timothy Lynch has this piece in the Washington Post and my co-blogger, Noel Erinjeri, has this to say on the matter:

Want to reform the system to make it less coercive? Then make it so the defendant doesn’t stand to lose anything by asserting his innocence.

This frames the issue of the utility of plea deals backwards. Framing it this way is like walking up to an elephant’s rear and wondering why it eats with its anus. The defendant is facing a prison term not due to an assertion of innocence but rather being charged with a felony. It should come as no surprise then that the commission of a felony normally results in prison time.

Consider the case of the armed robber caught on film, positively identified with the clerk, and caught nearby in a car matching the one seen on film and identified by the clerk, with the firearm, cash, and plastic bag from the store. Here in Ohio, the defendant would likely face a sentence in the range from two to eight years.

So, in this example, you have a defendant whose guilt is beyond a reasonable doubt facing an uncertain sentence that must fall within in a large range. In such a case, it’s in the defendant’s self-interest to minimize the top-end of prison exposure. (“Do the crime, do the time” is replaced with “did the crime, but get less time.”) Thus, when the defendant readily acknowledges guilt, the defendant gets a plea discount–not a trial tax. The defendant is gaining a benefit through reduced prison term exposure. Such a defendant is not suffering a real loss, which is why it’s not a true penalty but rather a discount.

While there are perhaps some systematic concerns to plea bargaining, in all cases (save actual innocence) individual defendants are usually better off pleading than facing the statutory maximum. (More on that below.) The only way guilty defendants would come out better is if they risk trial and wrongly get acquitted. So, it’s baffling that many folks who think the result of the criminal justice system is too harsh on defendants argue for eliminating the best method for ameliorating that harshness.

Besides the benefit defendants individually receive, there is reason to doubt that plea bargaining is the cause of anything deleterious. At its most basic, the “trial tax” framing suffers from an inability to prove that the causation arrow runs in that direction, i.e. defendants are suffering a penalty for exercising their rights to trial rather than as a consequence of their own criminal conduct.

Over at Simple Justice, Scott Greenfield discussed the study showing defendants in federal cases received 64% higher sentences in tried cases than pleaded cases. But there is no evidence showing that rejecting a plea caused a greater sentence to be imposed. In other words, those “higher” sentences more likely reflect the true (non-discounted) sentence that a judge would typically impose.

This is in contrast to the judge adding extra time onto a sentence that would have been otherwise imposed solely because the defendant insisted on a trial. In a way this happens in the federal system when defendants forego the acceptance of responsibility reduction by going to trial. In fact, the study concludes that in most cases it is indeed better to accept a plea deal than go to trial.

If guilty people are indeed spending too much time in prison, then that is an issue the legislators should resolve with the sentencing scheme. It’s not a problem that results from plea bargaining. Now, the same study raises the specter of innocent people facing such a certainty of conviction that they will plead rather than risk a trial. Lynch’s article is focused on this too:

To protect the innocent, however, the law demands that incriminating evidence be presented in court. The Constitution says every person accused of a crime has the right to an impartial jury trial. If the jury is persuaded that a person is guilty, then that person can lose his liberty and be punished. That is a sensible procedure for a just system, and it is why Americans have taken pride in our Bill of Rights.

Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.

These arguments make a critical and quite likely flawed assumption—the trial process will always vindicate the innocent. I can tell you from first-hand experience, trials do not always vindicate innocent people. If an innocent person would be likely unable to avoid conviction, then that is due to other systematic failures—again, not because of plea bargaining.

But don’t take my word for it. The Innocence Project has exonerated 325 wrongly convicted people by way of DNA.  This study by Professor Zalman estimates thousands of people are wrongfully convicted each year. Regardless of whether his estimates are correct, his study and the Innocence Project strongly suggest that abolishing plea bargaining would not avoid wrongful convictions. While we might know about less of those wrongful convictions because of circumscribed appellate rights, but that would not affect the conviction rate.

It might strike you as odd that a prosecutor would point out that folks do occasionally get wrongfully convicted. But it’s important to point that out here to blunt the loudest objection to plea bargaining, which is the horror of a wrongful conviction. To be sure, it’s unjust and accordingly it’s the argument with the greatest emotional resonance. Certainly reducing (and hopefully eliminating) wrongful convictions is a righteous goal, but blaming plea bargaining for them is a distraction to eliminating the true causes of wrongful convictions.

So, if you’re unhappy with mandatory minimums, broadly written criminal statutes, high top-end sentencing ranges, poor quality evidence being admissible, not enough mitigation is permitted in sentencing, or the like, then reforming plea bargaining won’t achieve anything other than defendants serving longer sentences. And unless I misread the concern here, that seems like a result opposite to what is desired. If anything, prosecutors are unwitting allies here because through plea bargains, defendants get more mercy than they would from the sentencing judge.

Even if Zalman’s very high 3% estimate is correct, that means in 97% of cases defendants are guilty and justly convicted. In 97% of those cases, the defendant is almost certainly better off than if they went to trial.

Defendants should be thankful for the plea discount; otherwise, they’d routinely face even higher sentences at the end of trials.

17 Comments on this post.

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  • Ben
    29 January 2016 at 10:48 am - Reply

    “These arguments make a critical and quite likely flawed assumption—the trial process will always vindicate the innocent.”

    No, I don’t think they are actually making that assumption at all. We all know that it’s closer to the opposite; the conviction rate at trial is something we already have the numbers for (it’s very, very high). So the argument is that a factually innocent defendant will look at the probable sentence they face and their chances of being convicted at court, and that will coerce them into falsely pleading guilty to get a lower sentence.

    • Andrew King
      29 January 2016 at 12:01 pm - Reply

      The main point here was that if you attempt to eliminate the “trial tax” by forbidding plea bargaining, then defendants will get longer sentences and that includes wrongfully convicted folks. You don’t protect the innocent by insisting on even more trials that, in some cases, will reach the wrong conclusion.

      As you indicate, it’s their chances of being wrongfully convicted that is really the issue before an innocent defendant; the availability of a plea is beside the point. In other words, plea bargaining doesn’t impact the odds that an innocent person will be convicted at trial.

      • jdgalt
        30 January 2016 at 3:20 pm - Reply

        King makes yet another flawed assumption here — that if prosecutors are forced to try every case, they will get the huge amount of additional funding that would be necessary to maintain their 97% conviction rate.

        It’s much more likely that they would be forced to dismiss the majority of cases that are now pled out, or at least to do such a perfunctory job on them that they might as well have dismissed them. In other words, they would face the kind of severe budget constraints that public defenders already face today.

        And that would be a much better system than now exists, because it is fairer.

  • CLS
    29 January 2016 at 12:55 pm - Reply

    King you magnificent bastard, I read your posts.
    Welcome to Fault Lines.

  • Richard Kopf
    29 January 2016 at 2:43 pm - Reply


    Whenever a criminal defense lawyer calls you a “magnificent bastard,” that means he waits in the dark in order to gut you like a fish.

    Well done.

    All the best.


    • Scott Jacobs
      29 January 2016 at 6:01 pm - Reply

      If you’re going to give away their secrets like that, they’re gonna take away your honorary membership, Your Honor…

      • Richard G. Kopf
        30 January 2016 at 10:01 am - Reply


        I forgot. Truly. Let me back in, if only as a dishonorable member.

        All the best.


    • CLS
      2 February 2016 at 12:06 pm - Reply

      A CDL can’t even make a Patton reference without catching some heat.

      Still, it’s coming from the Notorious RGK, so I’ll live with that.

      And no, Andrew, I don’t wait in the dark to gut you like a fish. That would make me a dishonest rogue.

      I’d at least give you thirty days’ notice via certified mail.

      • Andrew King
        4 February 2016 at 7:43 am - Reply

        At least I get a sporting chance.

  • Cornflake S. Pecially
    29 January 2016 at 2:46 pm - Reply

    What do you mean I didn’t get a good deal? The sticker said 50% off the original price!

    Nearly as good as getting ten charges dismissed for the price of one.

    And don’t forget to buy the warrantee protection plan. It will give you blanket immunity.

    P.S. In all sincerity, looking forward to your post about how the bail pricing matrix insures product integrity without devaluing your brand while insuring your customer base will feel like they are getting the deal of a lifetime when you do offer discounts on the back end.

  • Gloria Wolk MSW
    30 January 2016 at 7:33 pm - Reply

    The Innocence Project also shows 25% of wrongful convictions due to ineffective defense attorneys. I try to assist young people who are victims of incompetent or lazy lawyers, and it will not surprise me if the numbers are much higher than current estimates.

    Look at how many state public defender offices have filed suit because theywere so over-burdened they could not provide the services their training and ethics demand.

    Look at federal courts, where indigents are assigned privste lawyers who are paid (as of 2016) $129/hour — because there are too few federal defenders (the real professionals). And the budget-wise courts assign the direct appeal to the same lawyer. How many incompetent or lazy lawyers are going to self-critize? Assigning the same lawyer means a new lawyer doesn’t get paid to review evidence and transcripts–great savings. And every defendant who goes to federal prison then costs us $30,000/year in tax dollars.

    Bail is part of the problem leading to wrongful convictions, and this is life-changing not only for the defendant who cannot make bail but everyone in the family. Unable to make bail often leads to guilty pleas, with the promise of immediate release. One man in South Carolina stayed in jail for three years before he went to trial, and was acquitted. How many people have the stamina and resiliency, especially when there is a family that may lose their home while a parent sits in jail?

    And then there are dirty prosecutors whp assure that innocent people are convicted at trial. Former Senator Ted Stevens is a prime example.

    • Richard G. Kopf
      30 January 2016 at 10:42 pm - Reply

      Gloria Wolk MSW,

      You write that:

      “Look at federal courts, where indigents are assigned private lawyers who are paid (as of 2016) $129/hour — because there are too few federal defenders (the real professionals). And the budget-wise courts assign the direct appeal to the same lawyer. How many incompetent or lazy lawyers are going to self-criticize? Assigning the same lawyer means a new lawyer doesn’t get paid to review evidence and transcripts–great savings. And every defendant who goes to federal prison then costs us $30,000/year in tax dollars.”

      The foregoing is wildly inaccurate on a number of levels. First, there is a substantive reason for having the trial lawyer do the appeal–he or she knows the most about the case. Second, under the current law, ineffective assistance of counsel is almost always a loser and seldom can be raised properly on direct appeal even with a new lawyer. Third, ineffective assistance of counsel claims can be raised in section to 2255 proceedings (post-conviction motion), and the offenders are entitled to a new lawyer if there is a factual dispute. Finally, the CJA panel lawyers (the private lawyers you speak about) that I see day in and day out are some of the very best criminal defense lawyers in throughout the Nebraska, Iowa, Minnesota, Missouri, North Dakota, South Dakota and Arkansas. I believe the same is true throughout most of the federal courts in other states.

      I could go on and on. But it is clear to me that you don’t know whereof you speak.

      All the best.

      Richard G. Kopf
      Senior United States District Judge

      • Andrew Fleischman
        31 January 2016 at 5:02 pm - Reply

        Gotta agree with Judge Kopf on this one. In Georgia, you HAVE to raise ineffective assistance of counsel as soon as possible (before habeas).

        That means that trial lawyers rarely handle the appeal. Ironically, this makes them less likely to fight hard on legal issues and preserve errors, because they don’t have to worry about writing the brief later on.

        I would much prefer a system where trial lawyers were expected to be competent to handle the direct appeal. As is, I often have to raise hopeless IAC claims because counsel lacks the appellate practice experience to create issues in the record.

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    1 February 2016 at 9:42 am - Reply

    […] 1, 2016 (Mimesis Law) — My co-blogger, Andrew King, took issue with my criticism of the “trial tax,” characterizing it instead as a “plea discount.” He […]

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    1 January 2017 at 10:35 am - Reply

    […] There’s No Trial Tax; There’s A Plea Discount […]

  • Daniel
    3 January 2017 at 2:53 pm - Reply

    Make sentences reasonable, and if there is a defendant with a strong case against him, he or she will usually plead guilty anyway. The innocent defendant will then be encouraged to take the case to trial, but often they can’t because of draconian sentences and because police lie (as a former cop, I’m writing a book on why cops lie), plant evidence, make mistakes, and so forth, not to mention that discovery in criminal cases is limited and trials are by ambush against the defendant, especially in federal trials.

    As a pro se, I once took a misdemeanor case to a jury trial, and if I had been in one of those jurisdictions where the defendant can’t get the police report before trial (such as in a federal court where the report may be obtained *during* trial), I would likely have been convicted (the first testifying cop sounded so good on direct examination, I actually thought “wow, I’m toast” but I only thought that before my cross-examination began).

    I was able to expose the police for the liars they were only because I had the police reports and I did a proper investigation. The prosecutor and three police officers withheld another police-officer-witness from me because the hidden witness refused to lie (not all cops are dishonest). I only discovered the witness existed by cross-examining the “main” cop, and was able to use the omission in my closing argument (and I got a “missing witness” jury instruction specifically for the hidden witness by name) because not even the prosecutor disclosed the witness before cross-examination and didn’t even put him on the witness list. The “missing” witness was not mentioned at all in all three police reports. The prosecutor tried to excuse his own omission by saying, in court, “I found out about the witness shortly before trial myself,” yet I had to find out about the witness on cross-examination, and he was not even disclosed in opening statement or direct examination.

    I try to interview police witnesses but local prosecutors advise the cops that they don’t have to be interviewed (which, unfortunately, is the law), so the police won’t allow, at least not a pro per, to interview them (one excuse I get is “it’s a conflict of interest” or “on advice of county counsel I have been told not to talk”–but the prosecutor denied that was actually the case when I brought the issue up with the judge, who of course, won’t force the police to submit to interviews). I even try to persuade the police to give me a tape recorded interview, and tell them to record it themselves so I can’t accuse them of saying something they didn’t say, but they still won’t talk.