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November 2, 2006

Professor Podgor on the trial penalty

courthouse4.jpgAs noted in this prior post, one of the most perverse elements of the government's criminalization of business in the post-Enron era has been the trial penalty -- that is, the substantially longer prison sentences that executives face if they elect their Constitutional right to a trial instead of copping a plea bargain.

Over the past two years, Stetson Law Professor Ellen S. Podgor has been examining the trial penalty over at the White Collar Crime Prof Blog. In this op-ed, Professor Podgor analyzes the current landscape well:

Whether it be an individual or company, it is clear that those who play in the government's sandbox will be their friends and will reap enormous benefits through a sentence reduction or deferred prosecution. In contrast to the rewards received for cooperation, availing oneself of the constitutional right to trial by jury is an incredible gamble, with the stakes raised higher than ever before, as the sentencing guidelines provide for draconian sentences in white-collar cases. [. . .]

The government needs cooperators to make their cases. Cooperators also provide a more efficient system that reduces the costs for a government prosecution. But when the risk of a conviction after trial is so distinct from that received for cooperating with the government, it diminishes the right to a trial by jury, an essential part of our constitutional democracy.

Justice Byron White, in the famed case of Duncan v. Louisiana, 391 U.S. 145 (1968) noted the importance of this right when he stated that "the right to trial by jury is granted to criminal defendants in order to prevent oppression by the government." Id. at 155.

We have to wonder whether this right is fully realized when so many individual defendants and companies are folding to government demands because of the high risk entailed in proceeding to trial.

Add in the willingness of prosecutors to scapegoat business executives and appeal to the resentment of most jurors toward wealthy executives, and you have an environment where gross injustices such as what happened to the Merrill Four in the Nigerian Barge case and the sad case of Jamie Olis, among others. Meanwhile, a serial liar such as Andy Fastow is rewarded, even when it is clear that he testified falsely (see also here) against Jeff Skilling and Ken Lay.

This is not the product of a rational criminal justice system.

Posted by Tom at November 2, 2006 4:50 AM |


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