Kim on Underestimating the Trial Penalty

Andrew Chongseh Kim (Concordia University School of Law) has posted Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study (Mississippi Law Journal, Vol. 84, No. 5, 2015) on SSRN. Here is the abstract:

This Article reveals that the average federal defendant who goes to trial receives a sentence 64% longer than if she had instead plead guilty. In other words, federal defendants who exercise their Constitutional right to trial are penalized with sentences 64% longer for exercising that right. This Article is the first to demonstrate that federal defendants who currently go to trial would have been much better off if they had instead plead guilty, even after accounting for their chances for acquittal. It reveals also that federal defendants receive "discounts" for pleading guilty that are so large that extremely few could rationally ever go to trial. Under such a system, trial by jury becomes less of a right and more of a trap for fools. 

These findings and conclusions conflict with David Abrams’ recent study claiming that defendants can actually expect shorter sentences for going to trial.

Abrams claims that rather than penalizing defendants who go to trial, our system actually imposes harsher penalties on those who plead guilty. If Abrams’ study were accurate, it would overturn decades of debates regarding the morality and constitutionality of plea bargaining. This article reveals statistical and conceptual errors in the Abrams study that undermine his conclusions. In fact, a reanalysis of Abrams' numbers suggests that the defendants in his study do pay a significant penalty for going to trial. 

This Article's measurement of the trial penalty is over four times as large as the found in prior federal studies. It demonstrates that all prior studies underestimate the trial penalty by failing to account for the federal “acceptance of responsibility” discount that operates as a statutorily imposed discount for pleading guilty. The Article explains this and other methodological errors that cause other sentencing studies to greatly underestimate the trial penalty.