Plea Discounts or Trial Penalties? Making Sense of the Trial-Plea Sentence Disparities

Shi Yan, Shawn D. Bushway

Research output: Contribution to journalArticlepeer-review

8 Scopus citations


There is a consensus that defendants who plead guilty generally receive less harsh sentences than similarly-situated defendants convicted at trial. However, there is less consensus on how to characterize this disparity in the sentence. Some researchers refer to the disparities as “trial penalties,” whereas others refer to them as “plea discounts.” We contend that the two terms have different theoretical backgrounds and underlying assumptions. As a result, the theories require different modeling strategies, and can lead to different predictions on the relationship between the disparity and some key case characteristics. We start by differentiating the two perspectives theoretically. We then present an empirical analysis on defendants in New York State to substantiate our theoretical arguments. We demonstrate that the estimates of the trial-plea disparities depend on the assumption of the default, as estimates of the trial penalties differed considerably from the estimates of the plea discounts.

Original languageEnglish (US)
Pages (from-to)1226-1249
Number of pages24
JournalJustice Quarterly
Issue number7
StatePublished - Nov 10 2018


  • Trial penalties
  • counterfactual
  • plea bargaining
  • plea discounts

ASJC Scopus subject areas

  • Pathology and Forensic Medicine
  • Law


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