The term "trial tax" (also referred to as a "trial penalty") refers to the harsher penalties that defendants typically face if they choose to go to trial and are convicted, compared to the penalties they would receive if they had accepted a plea deal.

While the phrase itself is informal, its implications are very real in the U.S. criminal legal system, especially in federal cases. For individuals accused of federal crimes, understanding the impact of the "trial tax" is crucial when deciding whether to resolve their case through a plea agreement or proceed to trial.

A "trial tax" refers to a harsher sentence imposed on federal defendants who opt for a trial rather than accepting a plea deal.

Simply put, a trial tax refers to the phenomenon where defendants convicted at trial receive harsher sentences than they would have if they had pleaded guilty and accepted a plea bargain. This 'tax' is essentially a punishment for exercising the right to trial, a practice that many view as unjust and unfair. It serves as a stark reminder of the challenges defendants face within the legal system, evoking a sense of empathy for their plight.

In most criminal cases, defendants often plead guilty to a lesser charge or accept a reduced sentence in exchange for a plea agreement. If a defendant goes to trial and is convicted, judges may impose harsher sentences than those offered in the original plea deal.

Going to trial consumes more judicial time and resources, including juror time, court staff time, and prosecutorial efforts. The idea is that the system is incentivized to offer lighter sentences for those who cooperate (plead guilty) to avoid the costs of a full trial.

Arguments

Some argue that going to trial demonstrates a lack of responsibility and can lead to harsher sentencing. The trial tax can deter defendants from exercising their right to trial and may lead to a higher rate of guilty pleas, even when the defendant is innocent or feels pressured into pleading guilty.

Many argue that the trial tax is not just unfair, but also disproportionate and can lead to racial and ethnic disparities in sentencing. This perceived injustice has led to widespread debate about the constitutionality of the trial tax. The application of the trial tax may disproportionately affect minority defendants, raising serious questions about the fairness and equality of the criminal justice system.

Plea Agreements in Federal Cases

As noted above, the "trial tax" or "trial penalty" refers to the longer prison sentence a criminal defendant typically receives when they opt to go to trial instead of pleading guilty. The trial tax is essentially the result of a cost-benefit analysis. In exchange for not burdening the justice system, i.e., by not going to trial, you face a shorter prison sentence. 

If, on the other hand, you burden the system more, you'll face, in most cases, the maximum amount allowed by law. This is further compounded by the defendant's criminal history, which can also influence the severity of the trial tax. A defendant with a history of similar offenses may face a more severe trial tax than a first-time offender. 

This contradicts the fundamental need to protect and encourage citizens to exercise their constitutional rights. To fully understand the significance of the trial tax, let's examine the broader context of federal criminal cases. Today, roughly 98% of federal criminal cases are resolved through plea agreements rather than jury trials.

This staggering figure reflects the pressures and realities of the federal judicial system. But why do so many defendants opt to accept plea deals? Here are a few key factors:

• Federal prosecutors usually only indict when they have a strong case. Their investigations are often lengthy and thorough, providing solid evidence that is difficult to dispute at trial.
• The federal system has a high conviction rate. More than 90 percent of federal jury trials end with guilty verdicts, in part because of the point made above.
• Federal sentences are often more severe in a jury trial compared to a plea deal. This is precisely where the term "trial tax" originates. Plea deals usually result in reduced federal sentences for accepting responsibility or cooperating. In contrast, going to trial and losing can often result in significantly heavier penalties, discouraging even those with valid defenses from risking a trial.

This reality often works in a defendant's favor, as prosecutors would rather resolve cases out of court rather than go to trial. However, if a defendant is innocent, it puts undue pressure on them to waive their right to trial and admit to a crime they didn't commit out of fear that they will not get a fair verdict and that the resulting penalties will be far worse than if they had taken a deal. 

This pressure can have significant implications for the defendant's mental health, adding another layer of complexity to the trial tax issue and raising serious concerns about the fairness of the system. The mental health implications of the trial tax are significant and should not be overlooked in the discussion of this issue.

Prosecutors Play a Major Role

Aided by federal prosecutors' arguments at sentencing, judges routinely impose a more severe sentence on trial defendants than their guilty-plea counterparts. The increase is based on whether they chose to take their case to a jury trial - and, in turn, reject the prosecution's plea offer. 

This process raises questions about the fairness and impartiality of the legal system, particularly the influence of prosecutors on sentencing. It's a call for the audience to scrutinize the system, empowering them to demand fairness and justice.

Prosecutors actively seek to impose more severe prison sentences for individuals who reject plea deals, while federal judges most often concur with this argument.

The arguments are often couched in the language of efficiency or the waste of judicial and prosecutorial resources. That is to say, people who choose a jury trial and are deemed guilty should be punished more severely for being more wasteful than others. These arguments raise numerous questions and concerns, such as:

• How do they conform with the presumption of innocence or the right to a jury trial?
• Are prosecutorial caseloads and judicial resources more valuable than the presumption of innocence and the Sixth Amendment?

As noted, very few federal criminal cases go to a jury trial. Well over 90% of federal convictions result from guilty pleas. Although difficult to quantify, some of those pleas stem from the trial tax specifically incentivizing people to forgo their constitutional right to a jury trial.

U.S. Sentencing Guidelines

The United States Sentencing Guidelines are also a significant factor enabling the trial tax. For example, they award criminal defendants who take a plea deal with credit for accepting responsibility. In effect, defendants who choose to go to trial get penalized.

Under the U.S. Sentencing Guidelines, defendants who accept a plea deal are awarded credit for 'acceptance of responsibility." This credit is intended to reflect the defendant's recognition and affirmative acceptance of personal responsibility for the offense.

However, there is no guarantee that individuals who accept a plea deal will always take responsibility or show remorse. People accept a plea deal for various other reasons. Likewise, the argument that choosing a trial is always equivalent to failing to accept responsibility or show remorse is flawed. The credit for acceptance of responsibility under the guidelines does not fully account for the sentencing disparities between plea deals and trials. But it plays a role.

Why We Need Jury Trials

The trial tax has significant implications for the criminal justice system and society as a whole. It can lead to a higher rate of guilty pleas, even when the defendant is innocent or feels pressured into pleading guilty. This undermines the fundamental need to protect and encourage citizens to exercise their constitutional rights.

This means regularly requiring that the government meet its substantial burden of proving that a person is guilty of a crime beyond a reasonable doubt. Additionally, trials help the public better understand how our criminal laws are interpreted and implemented.

It seems reasonable that a person would think the system would encourage more public trials, not less. To the extent that the availability of resources and efficiencies matter when imparting justice, the government must balance those concerns against countervailing considerations.

Punishing people in any way for exercising their right to a speedy public trial by a jury and confronting the witnesses against them undermines their constitutional guarantees under the Sixth Amendment. It's not wrong to incentivize or reward a defendant for saving the government the expense, inconvenience, and risks of a trial. However, sentencing judges are not required to impose a penalty for choosing trials.

And the notion that every defendant who pleads guilty deserves credit for showing remorse and taking responsibility is flawed. A plea bargain is primarily a negotiation in most cases. Additionally, prosecutors are not required to trample on defendants' Sixth Amendment rights in exchange for those who choose to plead guilty or cooperate.

Weighing Your Options

Choosing between a plea deal and going to trial is one of the most important decisions a defendant can make. Several key factors should be carefully considered, and a skilled federal criminal defense attorney can help you weigh these factors against your odds of success at trial. Let's review below:

• Strength of the Evidence. The strength of the prosecution's evidence is often the most significant factor in deciding whether to proceed to trial. Federal prosecutors typically present extensive documentation and witness testimony that can be hard to counter. Even if you're innocent, the key question is whether you can effectively challenge their case. If the evidence against you is strong, a plea deal may be the safer choice.
• Potential Sentencing Outcomes. Defendants should compare the sentence they might face after a trial to the terms of a plea deal. Federal sentencing guidelines are strict, and losing at trial often results in significantly longer prison terms. This sharp difference, often referred to as the trial tax, has a significant influence on the decision.
• Personal Circumstances. How would a longer sentence affect your family, career, or finances? Are you ready for the emotional and financial toll of a lengthy trial? Plea deals, although not always ideal, may offer a quicker resolution than waiting months or years for a trial and subsequent appeals.
• Risks of Trial. Trials come with risks, even for defendants with strong defenses. Jury dynamics, judicial rulings, and unexpected setbacks can impact the outcome. In contrast, a plea deal offers certainty about the result, sentence, and timeline.

Role of a Federal Defense Attorney

The trial tax incentivizes almost all defendants to plead guilty. If they don't, they face a much longer sentence if convicted at trial. In an ideal world, our system would incentivize individuals who plead guilty and save government resources, without punishing those who choose to go to trial. But for now, avoiding the trial tax remains in the hands of prosecutors and judges.

Navigating the complexities of federal criminal cases requires the expertise of experienced legal counsel. A qualified federal defense attorney plays an essential role in helping you weigh the pros and cons of accepting a plea deal versus going to trial. Some of the ways an attorney can assist include:

• Analyzing the Strength of the Case: Your attorney can review the prosecution's evidence, identify weaknesses, and advise on the likelihood of success at trial.
• Negotiating Favorable Plea Terms: If taking a plea deal is in your best interest, an attorney can negotiate with the prosecution to secure the most favorable terms possible, ensuring that any agreement minimizes the long-term impact on your life.
• Defending Your Rights at Trial: If you decide to proceed to trial, a skilled attorney will develop a strategy tailored to your case, challenge the evidence against you, and present a compelling defense to the court and jury.
• Providing Objective Guidance: Most importantly, a federal defense attorney acts as a trusted advisor, helping you make informed decisions based on law, evidence, and your unique circumstances.

For additional information, contact our federal criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, California.

Related Content:

• The Trial Tax Penalty
• Plea Bargain Report
• Federal Criminal Process
• Right to a Speedy Trial