The law states that a criminal defendant cannot be penalized merely for exercising a constitutional right, such as a jury trial. But as defense lawyers know, penalties can sometimes be harsher if a defendant passes on a plea deal and instead proceeds to trial, and loses. This isn’t always the case; in fact, because criminal statutes today cover such a broad range of innocuous behavior, it’s sometimes better for a defendant to have a trial, even if he ends up losing. This way, the judge can see just how mitigated the “crime” actually was, and might take that into account when pronouncing sentence. But the risk of receiving a harsher penalty for going to trial and losing—also known as the jury tax—is alive and well, at least in Wisconsin
