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The Trial Tax: How the Constitution's Right to a Jury Became a Punishment for Using It
Fewer than 3% of federal criminal cases end in a trial. The reason is the penalty for asking for one.
Fewer than 3% of federal criminal cases end in a trial. This article argues that is not because 97% of the accused are guilty and grateful for a deal, but because the system has made exercising the Sixth Amendment right to a jury so dangerous that almost no one dares.
It draws on the National Association of Criminal Defense Lawyers' 2018 study of Sentencing Commission data, which found that in 31 of 33 federal offense categories, people convicted at trial received substantially longer sentences than people who pleaded guilty to the same conduct. In fraud cases, the post-trial sentence averaged roughly three times the plea sentence.
Two people, same conduct, same evidence, same courtroom: one signs a plea and cooperates, the other asks for a jury. The article asks whether a gap that large is a penalty on a constitutional right, and whether it can be squared with the Constitution at all.
Key points
- Fewer than 3% of federal criminal cases go to trial.
- Post-trial fraud sentences average roughly triple the plea sentence.
- The gap functions as a penalty for exercising a constitutional right.
How this applies to Elizabeth Hernandez's case
At sentencing, the judge twice noted that Elizabeth Hernandez was the only defendant in the scheme who went to trial. She received 240 months. Two men from the operation that recruited her pleaded guilty and received 60 and 82 months. Ask Congress to act on the trial penalty.
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