Bargaining with the Sixth Amendment: The Role of Risk Aversion and “Trial Penalties” in Plea Bargaining

A cornerstone of the American legal system is the Sixth Amendment, which guarantees everyone the right to a fair jury trial. [1] Despite this assurance, an increasing number of defendants are being sentenced without exercising their right to a full trial. Each year, around 98% of criminal cases in federal courts are being decided not by a trial, but by a plea bargain. [2] Plea bargains are deals offered by the government before trial that grant defendants reduced sentences in exchange for an admission of guilt in court. [3] This system increases the efficiency of the legal system, as it allows courts to process more cases quickly and with fewer resources. In theory, plea bargains are supposed to incentivize guilty defendants to confess and face a marginally reduced sentence. In practice, plea bargains encourage defendants, guilty or innocent, to admit guilt to avoid the risk of the steeper penalty they would face from a guilty verdict in trial. At the federal level, “trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher.” [4] This substantial difference between a sentence granted through a plea bargain and one granted after trial is called the “trial penalty,” referring to the fact that defendants are now punished simply for exercising the right to trial granted to them by the Sixth Amendment. Differences in sentences should not be so drastic that they drive innocent people to confess to crimes they did not commit. Such dramatically steeper trial penalties threaten the integrity of the Sixth Amendment because they coerce defendants into pleading guilty to avoid trial due to an aversion to risk rather than as a reflection of their actual guilt. 

Risk aversion is a theory of human behavior asserting that humans have a natural tendency to favor options that carry “lower risk even if it means lower returns compared to potentially higher returns that carry a higher degree of risk.” [5] This theory is driven by the fact that humans prefer certainty to uncertainty, a tendency that is speculated to have an evolutionary origin. [5, 6] The primary mechanism behind risk aversion is loss aversion, “a cognitive bias where the emotional impact of a loss is felt more intensely than the joy of an equivalent gain.” [7] Loss aversion causes people to make decisions in order to minimize possible losses rather than to maximize possible gains. [7] When applied to plea bargaining, loss aversion drives people to accept plea deals because they represent dramatically safer choices than trial sentences. When weighing the possibilities, defendants view trials not only as the riskier option, but also as the option that represents the potential loss of the better sentence posed by their plea deal. As such, defendants are disproportionately driven to accept plea deals to avoid the loss of their other better offer. These tendencies are magnified by the dramatic differences in sentence lengths offered by plea deals and trials; even if a defendant is innocent, they are driven to avoid the riskier option because it carries such a drastically higher sentence. This effect applies to lawyers as well; as the trial sentence increases, attorneys become more likely to recommend that their clients accept the plea bargain even if it is longer than expected considering the case. [8] Together, these findings demonstrate that it is not guilt or innocence that is driving plea deals, but rather the fear of the uncertainty, risk, and loss that might accompany going to trial.

To alleviate the injustice caused by plea bargaining, limits should be imposed on the magnitude that sentences offered in plea deals and trials can differ. [11] A less dramatic trial penalty will allow plea bargaining to function in the manner in which it was intended: to incentivize guilty defendants to confess rather than to pressure almost all defendants into accepting plea deals to avoid extreme sentencing at trial. Decreased differences in sentence severity will also uphold the right to trial that is guaranteed by the Sixth Amendment.

Another way to improve the system of plea deals is by implementing more regulation, transparency, and judicial oversight. [9] Often, plea bargaining occurs “privately and off the record,” resulting in some cases where defendants are exploited into accepting plea bargains under coercive tactics such as extremely restrictive time limits. [9, 10] The process of plea bargaining needs to be strictly regulated to ensure that defendants are not pressured by unjust methods into accepting deals.

The high prevalence of plea bargaining in its current state violates the spirit of the Sixth Amendment. With such a steep trial penalty, defendants are being punished simply for exercising their Sixth Amendment right to trial. The existence of a trial penalty is not the problem; rather, it is the excessiveness of the trial penalty that coerces defendants into accepting plea deals. To mitigate the issue of innocent defendants being manipulated into pleading guilty, the trial penalty should be limited and the process of plea bargaining should be regulated more strictly through increased judicial oversight. Through these modifications, plea bargaining can play the critical but uncoercive role in the legal system that it was intended to play.

Edited by Lola Castorina

Endnotes

[1] “Sixth Amendment.” Constitution Annotated, https://constitution.congress.gov/constitution/amendment-6/

[2] Johnson, Carrie. “The Vast Majority of Criminal Cases End in Plea Bargains, a New Report Finds.” NPR, February 22, 2023, https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice

[3] “Plea Bargaining.” U.S. Department of Justice, https://www.justice.gov/usao/justice-101/pleabargaining

[4] “The Trial Penalty.” NACDL, https://www.nacdl.org/Landing/TheTrialPenalty

[5] Schmidt, Jeff. “Risk Aversion.” Corporate Finance Institution, https://corporatefinanceinstitute.com/resources/wealth-management/risk-aversion/

[6] Adami, Christoph, Hertwig, Ralph, Hintze, Arent, & Olson, Randal. “Risk Sensitivity as an Evolutionary Adaptation.” Scientific Reports, February 4, 2015, https://www.nature.com/articles/srep08242

[7] “Why Do We Buy Insurance? The Loss Aversion, Explained.” The Decision Lab, https://thedecisionlab.com/biases/loss-aversion

[8] Burke, Janice, Wilford, Miko, & Yang, Yueran. “Understanding Attorneys’ Plea Advice: The Role of Defendant Guilt and Trial Penalties.” National Library of Medicine, October 28, 2025, https://pmc.ncbi.nlm.nih.gov/articles/PMC12649738/

[9] Fox, Mike. “Orwellian Justice: The Trial Penalty Under Fire.” CATO Institute, April 28, 2025, https://www.cato.org/blog/orwellian-justice-trial-penalty-under-fire

[10] Johnson, Carrie. “Trials Have Become an Endangered Species. A New Effort is Trying to Change That.” NPR, May 3, 2023, https://www.npr.org/2023/05/03/1172807956/trial-penalty-plea-deal

[11] “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.” NACDL, July 10, 2018, https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf