Antony Robreno 

The Sixth Amendment states that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[1] The right to a jury trial is one of the more important protections that our founding fathers put in place to ensure that the government cannot deprive its citizens of freedom without showing cause. Despite the Sixth Amendment, criminal trials are not as common as Hollywood makes them out to be.[2] The reality, as recognized by the Supreme Court in Lafler v Cooper, is that “criminal justice today is for the most part a system of pleas, not a system of trials.”[3] In fact, almost 98% of all criminal convictions come from plea deals.[4] However, such reliance on pleas has led to the creation of a new issue, one that courts and legislatures across the nation may have to deal with very soon. This issue is known as the “Trial Penalty.”[5]

What exactly is the Trial Penalty?

The Trial Penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”[6] For example, imagine that John is charged with  a felony that carries a maximum sentence of ten years in prison. During plea negotiations, the prosecutor offers to let John plead guilty to a lesser charge that only carries a sentence of two years in prison, but if John decides to go to trial, the prosecutor will pursue the initial charge and its accompanying ten-year penalty. That stark contrast in potential punishment between the plea and trial is what is referred to as the Trial Penalty.

The Current Debate.

Prosecutors very commonly use this practice of offering a plea with significantly less prison time in lieu of going to trial and facing the full penalty of the initial charge.[7]  Until now, courts have not found it to be unconstitutional. As a matter of fact, the Supreme Court has upheld the practice of plea bargaining on multiple occasions over the years.[8] Advocates of the current system say that the result is not a “trial penalty” but rather a “trial privilege,” insinuating that if a defendant accepts a guilty plea, it is because they are guilty and want the mercy of the plea deal.[9] Opponents of plea bargaining insist that that is just not the reality of what truly happens.[10]

Groups such as the National Association of Criminal Defense Lawyers and Fair and Just Prosecution argue that the practice is a draconian punishment for defendants that exercise their rights.[11] They argue that the reality of a criminal proceeding does not fully allow a defendant to think through the consequences and creates a coercive environment.[12] Imagine a defendant facing twenty-five years in prison, who is told by his attorney that he can take a plea deal of only three years, but he must decide in the next fifteen minutes. The pressure surrounding that individual is immense, and it could lead to an innocent person pleading guilty for fear of losing at trial and facing a punishment far worse.

How Do We Fix This?

Even though the Trial Penalty has existed for decades,[13] criminal justice reform has only recently reached the forefront of political discussion, putting this practice into the national limelight.[14] The Trial Penalty has also garnered bipartisan support, with more conservative groups such as the CATO Institute[15] and ALEC (American Legislative Exchange Council)[16] taking up the same position as progressive groups like the Innocence Project.[17] Given the support this issue has across the aisle, state legislatures across the country could be looking at putting protections in place to ensure that defendants are not punished for wanting to go to trial. The question is how will they accomplish this and how will our criminal justice system react to any changes? Advocates against the Trial Penalty have laid out multiple possible solutions they feel will eliminate the punishment for individuals taking a case to trial.[18] These solutions include things like eliminating mandatory minimums, ethical charging practices, open file discovery procedures, and removal of language in pleas that requires defendants to waive certain rights.[19] Judges can also have a big part to play in this effort as they have full discretion to deny a plea deal if they see it fit.[20] Until legislative change comes, judges across the country can defend an individual’s right to trial by rejecting plea deals they feel violated that right given the circumstances.[21]

While those policy changes are a start, they will have significant impacts on our court system. As it is, our criminal courts are backlogged with cases, a situation that was only made worse by the COVID pandemic,[22] and while judicial economy should not be an argument for limiting someone’s constitutional rights, it does pose a valid counter point. The reality of the criminal system is that every criminal case in our country cannot go to trial because there simply is not enough bandwidth in our criminal courts to maintain that volume of trials.[23] The perfect change may not exist, but there must be a start somewhere.


 When our founders drafted the Bill of Rights, they likely did not imagine a world in which the government could punish an individual for choosing to exercise their Sixth Amendment right to a jury trial. The current practice of plea bargaining has put our criminal legal system in a precarious position; the “tough on crime” rhetoric, which produced the creation of mandatory minimums, has led to a reliance on pleas, making the eroding away of constitutional rights almost common practice in our current system.[24]  Defendants in our criminal justice system are afraid to go to trial, even if they are innocent, simply because of the fear of a harsher punishment.[25] With bipartisan support and the emergence of criminal justice reform reentering the national spotlight,[26] perhaps states will begin adopting policies that will lessen or even eliminate the Trial Penalty and give individuals the ability to exercise their Sixth Amendment right without fear of government retribution in the form of a harsher sentence.

[1] U.S. Const. amend. VI.

[2] The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How to Save It, NACDL (July 10, 2018),

[3] Lafler v. Cooper, 566 U.S. 156, 170 (2012).

[4] 2023 Plea Bargain Task Force Report urges fairer, more transparent justice system, American Bar Association (Feb. 22, 2032)

[5] The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How to Save It, supra note 2

[6] Id.

[7] Prosectuorial Overcharging, Memorandum from Paul Bennett to Defense Attorneys in Michigan, (1979) (on file with the National Criminal Justice Reference Service).

[8] See, e.g., Missouri v. Frye, 566 U.S. 134, 143 (2012); Lafler, 566 U.S. at 170; Brady v. United States, 397 U.S. 742, 747 (1970) (all discussing the validity and integral role of the plea-bargaining practice).

[9] Carrie Johnson, Trials have become an endangered species. A new effort is trying to change that, NPR (May 3, 2023, 4:00 PM),

[10] Id.

[11] Id.

[12] Id.

[13] Bennett, supra note 7.

[14] Johnson, supra note 9.

[15] Clark Neily, The Trial Penalty, CATO Institute (Feb. 9, 2018, 9:51 AM),

[16] Resolution on Ensuring the Constitutional Right to Trial by Ameliorating the Trial Penalty, American Legislative Exchange Council (Dec. 23, 2022),

[17] Christinia Swarns, Why the Trial Penalty Must Go, Innocence Project (May 1, 2023),

[18] Sarah N. Lynch, US Criminal Justice Alliance Seeks to Erase ‘Trial Penalty’, REUTERS (May 3, 2023, 4:40 PM),

[19] Id.

[20] Richard Dahl, Can Judges Reject Plea Deals?, FIND LAW (February 2, 2022),

[21] Id.

[22] Patrick Smith, As The Nation’s Courthouses Reopen, They Face Massive Backlogs In Criminal Cases, NPR (July 14, 2021, 1:03 PM),

[23] Id.

[24] Swarns, supra note 17.

[25] Timothy Hogan, Why Would Someone Take A Plea If They Are Innocent?, Hogan Eickhoff (August 26, 2022),,will%20come%20out%20in%20court.

[26] Johnson, supra note 9.