The “Jury Trial Tax”: The Penalty for Insisting on a Jury Trial

It is a sad but well-known fact among criminal defense lawyers in many jurisdictions that if you insist on a jury trial and lose, you will get a stiffer penalty than if you lose the same case in front of a judge.  That’s right:  Same facts.  Same verdict.  Different sentence.

This is a variation of the so-called “trial tax,” which refers to the process by which a defendant is penalized for fighting a case at trial instead of pleading guilty.  However objectionable the idea of a trial tax may be, penalizing a defendant for exercising his/her constitutional right to a jury trial on a serious criminal offense should evoke even stronger indignation.

Yes, jury trials are more time-consuming and expensive for the government than bench trials.  (A bench trial is one in which the judge both presides over the trial and makes the ultimate determination on guilt.)  They take longer.  They involve more people.  In fact, a jury demand by every eligible defendant in a large city with a congested court calendar could completely overwhelm the system.  As a result, these systems are predicated on the assumption that some defendants will agree to litigate their case in front of a judge instead of a jury.  There has to be some incentive for them to make this decision.

Thus, say supporters of the system, it all depends on how you look at it.  You are not being PENALIZED for demanding a jury trial.  Instead, you are being REWARDED for agreeing to a bench trial.

Is this true?

It is easier for me to understand this reasoning with respect to the so-called “trial tax.”  After all, if you relieve the government of the need to call in witnesses, reduce demands on the overburdened court system, ease the government’s concern that you may walk away scot-free, and, most importantly, accept responsibility for the actions that led to the court case, it is easier to believe that you are getting something in return.  You might get probation, for example, instead of jail time.

I have more trouble accepting this fiction when it comes to the “jury trial tax.”  The key difference is that there has been no acceptance of responsibility.  You have the exact same facts, the same or similar presentation of evidence, and the same guilty verdict.  The only difference is the sentence.  How can you possibly argue that a longer sentence is not in retaliation for the defendant’s insistence on wasting the court’s time with a jury trial?