Distinguishing Plea Discounts and Trial Penalties

• Publication year: 2021

Distinguishing Plea Discounts and Trial Penalties

Ben Grunwald
Duke Law School, grunwald@law.duke.edu

DISTINGUISHING PLEA DISCOUNTS AND TRIAL PENALTIES

Ben Grunwald^*

Abstract

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there's widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it's merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it's not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don't know what to look for when searching for evidence of penalties and discounts in the real world.

This Article seeks to bring greater theoretical and empirical clarity to the debate. To that end, I propose a theoretical definition of plea discounts and trial penalties. Applying this framework to the existing literature, I argue that there is strong theoretical and anecdotal evidence of trial penalties but little systematic empirical evidence. Nearly all of the statistical research has only studied the plea-trial differential; because both discounts and penalties are equally consistent with the existence of such a differential, the literature cannot distinguish between them.

To develop a robust statistical test of the discount and penalty theories, we need to look elsewhere—where they make different

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predictions about prosecutorial behavior. Contrary to the views of the third camp of scholars—who maintain that's impossible—I show that discounts and penalties are only indistinguishable if we assume litigation costs and acquittal probabilities are static. But they aren't. They change all the time, and as a result, the discount and penalty theories diverge from each other, predicting different prosecutorial behavior. I argue that this theoretical insight might be used to develop an empirical test to help assess the prevalence and intensity of discounts and penalties in criminal court.

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CONTENTS

Introduction................................................................................264

I. What Are Plea Discounts and Trial Penalties?..............273

A. Background on Plea Bargaining........................................273
B. Defining Discounts and Penalties.......................................276

II. Existing Evidence of Discounts and Penalties................281

A. Institutional Theory............................................................. 282
B. Interviews............................................................................283
C. Cases...................................................................................285
D. Statistical Studies................................................................288

III. Distinguishing Prosecutorial Behavior Under the Discount and Penalty Theories..........................................292

A. Litigation Costs...................................................................293
B. Risk of Acquittal..................................................................295
C. Implications ........................................................................ 297

IV. Designing an Empirical Test of Plea Discounts and Trial Penalties.................................................................................298

Conclusion...................................................................................303

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Introduction

Everyone agrees that a criminal defendant who pleads guilty receives a lower sentence than if convicted at trial. But why? Does that difference represent a plea discount or a trial penalty? Much rides on this question. If the plea-trial differential represents a discount, plea bargaining merely expands the range of choices available to defendants. But if it represents a penalty, then plea bargaining—a system that helps produce the vast majority of criminal convictions in this country—is a deeply troubling and coercive practice that punishes defendants for exercising their constitutional rights.¹ This is plea bargaining's greatest problem; even those scholars who have defended plea bargaining recognize the need to assume penalties away.²

Perhaps unsurprisingly, there's widespread scholarly disagreement about plea discounts and trial penalties. The dominant view among criminal law scholars appears to be that the plea-trial differential routinely represents a penalty.³ But a second group has taken the opposite position, that it represents a discount.⁴ And a third group

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denies any meaningful distinction between the two at all, believing that discounts and penalties merely represent "two sides of the same coin."⁵

One reason for the disagreement is that these concepts are often poorly defined.⁶ While scholars refer to them all the time, they often intend different things. Sometimes scholars use "trial penalty" and

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"plea discount" interchangeably, as though they were different phrases referring to the same idea.⁷ Other times, they use "trial penalty" to refer to the difference between the sentence that a defendant would have received through trial or guilty plea.⁸ other times, they say "trial penalty" to refer to the difference between the sentence of defendants who plead guilty and the average sentence of both defendants convicted at trial and those acquitted.⁹ Still other times, they may refer to the reduction in punishment included in plea offers to compensate defendants for giving up the chance of acquittal at trial. And still other times, they refer to a variety of prosecutorial tactics to manipulate the sentences of defendants who go to trial, including introducing extraneous evidence to "poison the court."¹⁰ Many of these legal phenomena are worthy of scholarly attention, but they are probably not all trial penalties.

Another cause of the widespread scholarly disagreement on discounts and penalties is that the empirical literature is not dispositive. One problem is that the trial penalty is a subtle and abstract concept that can be difficult to test empirically. Another is that prosecutors are reluctant to talk openly and honestly about them.

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But again, perhaps the biggest problem is conceptual: we lack relevant data because scholars don't know what to look for when searching for evidence of penalties and discounts in the real world.

This Article seeks to bring greater theoretical and empirical clarity to the discount/penalty debate. To that end, in Part I, I offer a theoretical framework to define plea discounts and trial penalties. My hope is that by specifying their criteria, it will be easier to go out into the world and generate evidence about them.

As others have observed, whether a plea offer represents a penalty or a discount depends on the normative baseline against which it's measured.¹¹ The tricky part is defining the normative baseline. To do so, I make two assumptions. The first is that the baseline is the sentence the defendant should receive.¹² This assumption is modest, almost tautologically true. Indeed, with only a few exceptions,¹³ I place no restrictions on how one determines the sentence a defendant should receive.

My second assumption is that the normative baseline does not take into account the defendant's choice whether to exercise or waive the right to trial.¹⁴ A full defense of this assumption is beyond the scope of this Article,¹⁵ and a few readers will no doubt disagree. But, for

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several reasons, I suspect it captures most readers' intuitions. First, unlike baseline questions in other contexts, which are unmoored from any constitutional anchors, the Sixth Amendment of the U.S. Constitution guarantees defendants the right to a jury trial. To be sure, that does not mean the government can never burden the exercise of the right to trial.¹⁶ But the existence of a constitutional right means it's harder to justify increasing the baseline because a defendant insists on going to trial. Second, a large majority of criminal law scholars appear to agree that prosecutors shouldn't seek higher punishments than a defendant should otherwise receive simply because the defendant exercises the right to trial.¹⁷ Many courts have

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supported this view as well in the sentencing context.¹⁸ For these reasons, I assume that the baseline does not change based on whether the defendant exercised or waived the right to trial.

Based on these two assumptions, a plea offer represents a discount if the government says it will pursue at trial a sentence equal to or below the normative baseline, which is defined as the sentence the defendant should receive without accounting for the decision to exercise or waive the right to trial. Suppose, for example, that the government informs a defendant he can accept a guilty plea to charges that translate into a seven-year sentence or else the government will pursue charges at trial that translate into a ten-year sentence. If the normative baseline is ten years (or more), then the offer represents a discount because the government will pursue a punishment equal to (or less than) the baseline if the defendant goes to trial and will pursue an even lower punishment if the defendant waives the right to trial. In other words, the offer would merely expand the defendant's range of choice by giving the option to plead guilty and receive a sentence that is lower than he should and would otherwise receive at trial. If, on the other hand, the baseline sentence is less than ten years, then the offer represents a penalty because the government threatens to pursue a sentence above the baseline if the defendant exercises the right to trial. Under these circumstances, the offer would be coercive because it would force the defendant to accept a harsher sentence than...