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The Trial Penalty and Jury Sentencing: A Study of Air Force Courts-Martial


  • The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Air Force, the Department of Defense, or the U.S. government. The author thanks Brian Johnson for his helpful comments.

University of Maryland, Department of Criminology and Criminal Justice, 2220 LeFrak Hall, College Park, MD 20742; email: Breen is an Air Force reserve judge advocate and a doctoral candidate in the Department of Criminology and Criminal Justice at the University of Maryland.


The sentencing empirical literature generally supports the notion that most defendants plead guilty because judges impose more severe sentences for those who assert their Sixth Amendment right to a jury trial. Whether this trial penalty effect is present in jury sentencing jurisdictions has been rarely investigated. King and Noble (2004, 2005) presented evidence suggesting that in practice, jury sentencing assists prosecutors and judges in maintaining a trial penalty or plea discount system. The present study investigates whether a trial penalty exists in the military—a jury sentencing jurisdiction that offers jury sentencing after a guilty plea as well as a trial. Using Air Force court-martial data from 2005–2006, the study finds no trial penalty effect and that juries are less likely to impose severe types of punishment compared to judges. The study discusses implications for public policy, theory, and future research.