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Trial Tax In the Criminal Justice System

Posted by Ronald D. Hedding | May 29, 2025

Under the United States legal system, every criminal defendant charged with a serious offense is entitled to a trial by a jury of their peers. It's a process that's theoretically balanced in favor of the defendant, based on the idea that guilty people should go free rather than for one innocent person to be convicted. However, the reality is that most criminal cases are resolved through a plea deal, revealing a significant and concerning imbalance in the system that should raise our collective concern.

Prosecutors, judges, and the system are to blame. The courts are overcrowded already, and a criminal trial costs both time and money. That gives the prosecutor a strong incentive to “settle” a criminal case with a plea deal.

That can mean lowering the charges to a lesser offense, offering defendants a sentence on the lower end of the potential range for their charges, or even exchanging a guilty plea for “time served” while in custody. The system also encourages becoming vindictive when it doesn't get its way through a "trial tax."

Experts estimate that a defendant who gets convicted at trial after refusing to accept a plea deal faces a significantly harsher prison sentence. This is one of the primary reasons defendants, whether innocent or not, are hesitant to go to trial. Particularly if an overburdened public defender represents them, many defendants are terrified of the potential outcome of a trial, even when they're innocent, highlighting the immense and empathetically understandable pressure they face to accept a plea deal.

Simply put, the informal term "trial tax" (trial penalty) refers to the harsher penalties that defendants often 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. The implications are very real in the criminal legal system, especially in federal cases. This "tax" is essentially a punishment for exercising the right to trial, a practice that many view as inherently and outrageously unfair, sparking a sense of injustice in the audience.

Pleading Guilty for a Reduced Sentence

In most federal 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 often impose harsher sentences than those offered in the original plea deal.

The idea is that the system is incentivized to offer lighter sentences for defendants who plead guilty to avoid the costs of a full trial. Some argue that a 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 also argue that the trial tax is not just unfair, but also disproportionate and can lead to racial and ethnic disparities in sentencing. The trial tax is the result of a cost-benefit analysis. In exchange for not burdening the justice system, you face a shorter prison sentence. If you overload the system, you'll, in most cases, face the maximum amount allowed by law. Notably, around  98% of federal criminal cases are resolved through plea agreements rather than jury trials.

Why Defendants Accept Plea Deals

There are many reasons why so many defendants choose to accept plea deals. For example, federal prosecutors typically only indict when they have a strong case. Their investigations are often thorough, providing solid evidence that is difficult to dispute at trial. The federal criminal justice system has a high conviction rate. More than 90 percent of federal jury trials end with guilty verdicts. 

The Trial Tax In the Criminal Justice System
A trial tax refers to the harsher sentence a defendant receives when they go to trial rather than accepting a plea bargain.

Additionally, federal sentences are more severe in a jury trial compared to a plea deal, which is where the term "trial tax" originates. Plea deals often result in reduced sentences for accepting responsibility or cooperating with the prosecution. In contrast, going to trial and losing will typically result in significantly heavier penalties, discouraging even those with valid defenses from risking a trial.

However, suppose a defendant is innocent. In that case, 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.

Supported by the arguments of a federal prosecutor, judges routinely impose a more severe sentence on trial defendants than their guilty-plea counterparts. This process raises questions about the fairness and impartiality of the legal system.

Federal prosecutors actively seek to impose harsher prison sentences for defendants who reject plea deals, while federal judges most often concur with this argument. This system suggests that defendants who opt for a jury trial and are found guilty should be punished more severely, as they are deemed to be more wasteful than those who choose a bench trial. 

The United States Sentencing Guidelines also enable the trial tax. It awards criminal defendants who take a plea deal with credit for accepting responsibility. Simply put, defendants who choose to go to trial get penalized. Under the Sentencing Guidelines, defendants who accept a plea deal are awarded credit for 'acceptance of responsibility'. This credit is designed to reflect the defendant's affirmative acceptance of personal responsibility for the offense.

Trial Tax Quick Facts

  • The trial tax can lead to a higher rate of guilty pleas, even when the defendant is innocent or feels pressured into pleading guilty.
  • This system undermines the fundamental need to protect and encourage citizens to exercise their constitutional rights.
  • Federal jury trials help the public better understand how our criminal laws are interpreted and implemented.
  • Punishing defendants 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 reward a defendant for saving the trial expense, but judges are not required to impose a penalty for choosing trials.

Considering Your Options

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

  • The strength of the evidence is the biggest factor in deciding whether to go to trial. Federal prosecutors typically present extensive documentation and witness testimony that can be hard to counter. If the evidence against you is strong, a plea deal may be the safer choice.
  • Defendants must compare the sentence they might face after a trial to the terms of a plea deal. Federal sentencing guidelines often result in significantly longer prison terms. This sharp difference has a significant influence on the decision.
  • You need to consider how a longer sentence affects your family, career, or finances. Plea deals may provide a quicker resolution than waiting months or years for a trial and appeals.
  • Trials have risks, even for defendants with strong defenses. Unexpected setbacks can impact the outcome. In contrast, a plea deal offers certainty about the result, sentence, and timeline.

Contact a Federal Defense Attorney

The trial tax incentivizes defendants to plead guilty. If they don't, they can get a much longer sentence if convicted at trial. Navigating the complexities of federal criminal cases requires the expertise of experienced legal counsel.

Federal Defense Attorney

Our federal defense attorneys play a vital role in helping you weigh the options of accepting a plea deal versus going to trial. Some of the ways we can help are discussed below. 

We can review the prosecution's evidence, identify weaknesses, and advise on the likelihood of success at trial. If taking a plea deal is in your best interest, we can negotiate with the prosecution to secure the most favorable terms possible, ensuring that any agreement minimizes the long-term impact on your life.

If you decide to proceed to trial, we will develop a strategy tailored to your case, challenge the evidence against you, and present a compelling defense to the court and jury. We will act as your trusted advisor, helping you make informed decisions based on law, evidence, and your unique circumstances. For additional information, contact the Hedding Law Firm, located in Los Angeles, California.

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About the Author

Ronald D. Hedding
Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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Hedding Law Firm is committed to answering your questions about Federal Criminal Defense issues in Los Angeles and Encino California. We'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

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