The Trial Penalty

The Constitution guarantees each of us the right to a fair jury trial. However, when you exercise that right, you place yourself in peril of the Trial Penalty. My latest article for Interrogating Justice explores how one set of Reality Television stars exercised that right and got hammered, especially compared to another set of Reality Television stars who took a plea deal.


Thank you for sharing your excellent article about the Chrisleys…

With ~97% of federal cases ending with a plea - note that makes the Chrisleys particularly exceptional in that they are the ~3% who elected their constitutional right to a trial…

My question is why has there been no substantial public questioning of the “efficiency of the plea bargaining” system and the trial penalty? There is not supposed to technically be a trial penalty, and yet everyone acknowledges the system would break unless an inducement were offered …

Here’s an excerpt from a Cato article regarding its connection to mass incarceration:
“plea bargaining arose in response to the need to process a rapidly increasing number of criminal defendants through a legal system that was carefully designed to promote fairness and transparency over the government’s preference for speed, convenience, and certainty. Thus, as America’s criminal codes expanded, drawing more and more people into an increasingly professionalized and industrialized system, the need for a more efficient way of processing criminal charges became acute.”

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I’m familiar with the Cato Institute article as I’ve spoken at length in the past with Clark Neily who heads Cato’s criminal justice reform program. One of his biggest focuses is on the Trial Penalty, and he is dedicated to taking steps to get juries engaged and defendants not pleading out. The jury trial was actually meant as a curb on state power, as was the Grand Jury system (we all know about how that went with everyone now an indictable ham sandwich). The plea bargain is a relatively new creature and it has led to mass incarceration as people fear the cost of a trial and the fallout of a guilty verdict. This is why we have the phenomenon of innocent people taking a plea deal. This has happened with women’s incarceration which went from 25,000 women inmates in 1980 to over 150,000 today, 80% of whom are nonviolent offenders.