The Trial Penalty: Bipartisan Bill Would Make Prosecutors Report Every Plea Offer So the Cost of Going to Trial Can Be Measured

WASHINGTON — Federal prosecutors would have to record every plea offer they make, every offer a defendant turns down, and the sentence imposed after a trial that follows, under a bipartisan bill introduced on Tuesday that would measure, for the first time, the "trial penalty": the difference between the punishment offered for a guilty plea and the punishment imposed on those who insist on a jury. The Plea Bargaining Transparency Act does not propose to shrink the gap. Its sponsors say that no one can argue about the size of a thing that has never been counted.

"We know the plea rate to a decimal point. We do not know what the pleas cost, because the offers vanish the moment they are accepted," one of the bill's sponsors said at its introduction.

The numbers that exist

Measure	Figure	Source
Federal convictions by guilty plea	About 97–98 percent	US Sentencing Commission annual data
Federal defendants tried	About 2 percent	Administrative Office of the US Courts
Federal defendants tried, 1980s	Nearly 20 percent	Historical court statistics
Acceptance-of-responsibility reduction	Three offense levels, generally unavailable after trial	Guidelines §3E1.1
Post-trial sentences relative to plea sentences	Estimated at several times longer for comparable conduct	Academic and defense-bar studies
Plea offers recorded in any federal database	None	—

Where the penalty comes from

• The Guidelines. A defendant who pleads guilty ordinarily receives a three-level reduction for acceptance of responsibility, worth roughly 25 to 35 percent of the sentence; a defendant who goes to trial almost never does.
• Charge bargaining. Prosecutors control which counts are charged. A plea offer may drop a count carrying a mandatory minimum, or the government may agree not to file a prior-conviction enhancement that doubles the minimum. A defendant who rejects the offer faces the full indictment, often a superseding one.
• Relevant conduct. Until this month, judges could increase sentences based on conduct the jury acquitted; the Supreme Court's decision in United States v. Marlowe ended that practice, and the dissent predicted that prosecutors would respond by charging fewer counts and pleading more cases — a prediction the bill's data would test.
• Judicial discretion. Judges may, and often do, sentence within the range the plea would have produced, but they are not required to, and they are not told what the offer was.

The Supreme Court has upheld the structure that produces the penalty. Bordenkircher v. Hayes (1978) held that a prosecutor may threaten harsher charges to induce a plea; Lafler v. Cooper and Missouri v. Frye (2012) recognized that plea bargaining is the system and guaranteed effective counsel within it. What the Court has never had, and what the American Bar Association's Plea Bargain Task Force called for in its 2023 report, is data.

What the bill would require

1. Recording. Every formal plea offer by a federal prosecutor — the charges to which the defendant would plead, the stipulated or recommended Guidelines range or sentence, any cooperation or appeal-waiver conditions, and the deadline — and whether it was accepted, rejected or withdrawn.
2. Reporting. Transmission of the data, stripped of names, to the Sentencing Commission, which would link it to the sentence ultimately imposed and publish annual statistics by district, offense type and defendant characteristics.
3. Study. The Judicial Conference would report on whether sentencing judges should be informed of rejected offers and whether the Rules of Criminal Procedure should require offers to be in writing.
4. Sunset and review. The reporting requirement would expire after seven years unless renewed on the basis of the Commission's findings.

We know the plea rate to a decimal point. We do not know what the pleas cost, because the offers vanish the moment they are accepted.

A sponsor of the bill

Who objects

The Justice Department, in a letter to the sponsors, opposed the bill. Plea offers, it said, embody prosecutors' assessment of the strength of their evidence and the resources a case deserves; a database of them would become a target for discovery requests and would chill the offers that keep the system functioning. The Department also noted that the Sentencing Commission already publishes detailed sentencing data and that defendants may describe rejected offers in sentencing memoranda. Some judges share the concern that a record of rejected offers could become an anchor at sentencing. Defense organizations, the ABA task force and several former prosecutors support the bill, arguing that the Department's objection is to measurement rather than disclosure: offers are already disclosed in open court when pleas are entered and when defendants reject them on the record under Frye, and the bill asks only that they be written down in one place.

Why it matters

A measurable trial penalty would inform every argument about plea bargaining that is now conducted on anecdote: whether the penalty is proportionate, whether it falls more heavily on some districts or offenses, whether innocent defendants plead because the risk of trial is too great, and whether the Supreme Court's new rule on acquitted conduct shifts leverage. It would also test the Department's own claim, made for decades, that the plea system is a bargain in both directions.

What happens next

The bill has been referred to the Judiciary Committees of both chambers; a Senate hearing is expected before the end of the year. Its sponsors have said they will seek to attach it to a broader criminal justice measure if it does not move on its own. Several states, including Connecticut and Wisconsin, have begun collecting plea data under their own laws, and their experience will be cited on both sides.

The Counsel will report the committee hearing. Defendants weighing a plea offer should ask counsel to put the offer and the post-trial exposure in writing side by side; the bill would make that comparison a public statistic, but it is already the private one that matters.

This report is for general information only and is not legal advice. Readers should consult a licensed attorney about their own circumstances.