The National Associate for Criminal Defense Lawyers (NACDL) released a report last year which discovered that less than three percent of federal criminal cases are resolved through trial across the country.

It explores the contrast between a defendant’s Sixth Amendment right to a speedy trial and the reality that a criminal defendant who pleads guilty before trial consistently receives a lower sentence than a defendant who is convicted after trial (the so-called ‘trial penalty’).

This phenomenon is not a new thing – in 1962, 5,098 federal criminal trials occurred. In 2002, that figure went to 3,574, while in 2017, the number of federal trials reached 1,800. There are several reasons to explain the decline. First, most criminal defendants do not want to risk the time and expense of a trial just to receive a conviction.

The majority of defendants who proceed to trial are convicted – 85 percent of trials in 2017 resulted in a guilty verdict. Fraud cases accounted for an even higher conviction – closer to 89 percent of defendants who decided to have a trial were found guilty.

That, coupled with the likelihood that a post-trial sentence will be significantly higher than a pre-trial sentence could explain the extinction of a federal criminal trial. This is particularly relevant for white-collar cases.

Take fraud, for example. Defendants who proceed to trial and are found guilty receive sentences that are, on average, three times more severe than defendants who plead guilty pre-trial. For food and drug offenses, defendants who secure a plea deal get 0.4 years on average, versus 4 years post-trial.

Of course, there is the argument that the reform of the sentencing guidelines in the late 1980s was intended to discourage trial and encourage defendants to plead guilty, particularly with white-collar crimes.

Under the guidelines, ‘economic crimes’ calculates a defendant’s sentence based on the amount of money lost or intended to be lost from the offense. The time spent in prison increases exponentially with each dollar, which can often result in extreme sentences that are out of proportion with a defendant’s actual culpability.

One example in the report illustrates this reality, in United States v. Corsey. The defendants in the case were sentenced to the maximum amount of time (twenty years in prison) after they were found guilty of a scheme which the court called, in turns, absurd, clumsy, almost comical, and ridiculous.

It involved them getting funding for a fake oil pipeline that they planned on building across Russia, and then tried to sell the deal to an FBI informant. The intended loss they sought was equal to $3 billion of funding, even though the deal never came to fruition. While on appeal, the case was remanded for resentencing, it illustrates the fact that prosecutors can have inappropriate leverage to use against defendants and force a plea deal in white-collar prosecutions.

Prosecutors also abuse their discretion to charge lower or higher crimes with lower or higher sentences when discussing plea deals with defendants. For example, in 2013, FedEx and UPS were accused by the government of working together to deliver pharmaceuticals bought from Internet pharmacies that were illegal.

There was no evidence presented that the companies were aware of this happening, but the UPS entered into a non-prosecution agreement and paid a $40 million fine. FedEx proceeded to trial, where the government asked for fines of $1.6 billion (forty times the amount UPS paid). Ultimately, FedEx won, but the case illustrates how prosecutors can use their power to exert undue influence on defendants.

The NACDL concludes its report with ten recommendations to increase the chance of a trial, and ultimately give each party a more equal opportunity to bargain. Among these recommendations are: judicial oversight of the plea-bargaining process and allowing defendants to have full discovery prior to entering their guilty plea.

A reform of the sentencing guidelines would be useful and develop procedures to evaluate and ensure that pre-trial and post-trial sentencings are closer in severity.