When process affects punishment: Differences in sentences after guilty plea, bench trial, and jury trial in five guidelines states

The research reported in this Essay examines process discounts - differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea - in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty plea convictions would generate the lowest sentences, with bench trial sentences averaging higher than plea-based sentences for the same offense, and sentences following jury trials averaging the highest of all, even after controlling for other factors associated with sentence severity. We found that a significant plea discount is evident for most offenses in all five states. Waiving a jury in favor of a bench trial has less consistent punishment consequences. Among states and even within a single state, the prevalence of process discounts is extraordinarily varied, as are the causes and methods of discounting. The Essay explores how these findings might inform sentencing reform and discusses the use of bench trials in sentencing guidelines systems generally.