The right to a jury trial is constitutional. The cost of using it is practical. When the offer is probation and the post-trial exposure is prison, the choice is formally free and functionally coerced — and that gap is what the phrase trial penalty names.
Why it is almost never visible
The mechanism is usually oral, conveyed through counsel, and never written down. It leaves no record for an appellate court to examine, which is precisely why written examples are rare and significant.
The legal boundary
Bordenkircher v. Hayes permits prosecutors to withdraw offers and to seek lawful heavier sentences after trial. What is not permitted is punishing a defendant for exercising a protected right. The distinction is fact-intensive and turns on the strength of the case, the disclosure history, and the conduct that follows.
The documented example
A Lake County prosecutor wrote on June 12, 2025 that a trial would revoke the offer and bring a prison request if the State prevailed. The email is reproduced and analyzed in The Trial Penalty in Writing.