# Trial Penalty The **trial penalty** is the gap between the sentence a federal defendant receives after pleading guilty and the sentence the same defendant would expect after losing at trial. The National Association of Criminal Defense Lawyers, whose 2018 study is the standard reference, found that across most primary offense categories the average post-trial sentence ran **more than three times** the average post-plea sentence, with far wider gaps in particular categories. The penalty is not a formal rule; it is the sum of ordinary mechanisms. Acceptance-of-responsibility reductions under the [[Federal Sentencing Guidelines]] are available only on a plea. Charge bargaining lets a prosecutor withdraw a count carrying a mandatory minimum, or decline to file the § 851 enhancement that doubles one. Cooperation departures require a prosecutor's motion. Each is defensible on its own terms; together they price the exercise of a constitutional right, and that price is the reason the federal trial has become statistically rare rather than merely uncommon. See [[How a Federal Prosecution Begins and Ends]] for where the choice is made. > [!note] Stub > Phase 1 spine stub. Expand: the NACDL 2018 report and its methodology, *Bordenkircher v. Hayes*, acceptance of responsibility, § 851 enhancements and charge bargaining, the innocence-plea problem, and comparative data from state systems. ## See also - [[How a Federal Prosecution Begins and Ends]] - [[Federal Sentencing Guidelines]] · [[United States Sentencing Commission]] - [[Sixth Amendment]]