Assessing and reflecting on the trial penalty

Tom Kirkendall at Houston’s Clear Thinkers has this great new post entitled “Hedging the trial penalty.”  Here is a taste:

Although some have questioned his business ethics, no one has ever questioned that legendary Houston oilman Oscar Wyatt is good at hedging risk.  After Wyatt was sentenced yesterday to a year in prison as a result of his plea deal, my sense is that Wyatt hedged the trial penalty risk (i.e., a life sentence) in an reasonably effective manner.

Meanwhile, in another plea deal, a tenured economics professor at the University of Pennsylvania faces a likely prison sentence of 4½ to seven years for bludgeoning his wife to death. The professor says he “just lost it.”  What must Jamie Olis think about that as he finishes serving what will almost certainly be a longer sentence than the professor will serve?

And what about Chalana McFarland, a first-time offender who was sentenced to 30 years in prison in connection with a mortgage fraud scheme….

Is the draconian trial penalty in the American criminal justice system really generating the type of results that a truly civil society wants?

I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty: consider, for example, the reality that Genarlow Wilson and Weldon Angelos and border agents Ignacio Ramos and Jose Compean were all offered pleas deal that would have resulted in prison sentences years or even decades shorter than what they received after trials (in which, by the way, there were acquittals on some counts).

More concretely, I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley).  My anecdotal impression is that the trial penalty in some large corporate cases is now decades long.  If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.