One of the many troubling aspects of the Enron Task Force’s prosecution of former Enron CEO Jeff Skilling is the “trial penalty” that Skilling faces in connection with his sentencing (which is next Monday, October 23rd).

The trial penalty is the additional time that Skililng faces in prison because he chose to assert his Constitutional right to defend himself against the government’s charges in comparison to similarly-situated defendants, such as former Enron CFO Andrew Fastow (six years) — who copped a plea under a cooperation agreement with the Task Force — or former Enron chief accountant Richard Causey (no more than seven years), whose deal with the Task Force does not include an obligation to cooperate in other cases.

Exhibiting the same professional integrity that Joseph Grundfest recently displayed in the sad case of Jamie Olis, University of Illinois law professor and criminal law expert Margareth Etienne has filed an amicus curie brief in connection with the October 23rd Skilling sentencing hearing. Professor Etienne bears down on the key issue (citations are omitted):

[A] plea discount must be differentiated from a trial penalty. A plea discount–or a limited reduction such as acceptance of responsibility that takes into account factors such as a guilty plea–have been deemed constitutional; but a trial penalty–a punishment for exercising Fifth and Sixth Amendment rights–would clearly be unconstitutional insofar as it would violate the “unconstitutional conditions” doctrine. The “unconstitutional conditions” doctrine simply states that the imposition of a penalty for exercising a constitutional right creates an unconstitutional condition. Imposing a sentence on Mr. Skilling that is several times that of the sentences faced by his co-defendants–when the only material distinction between their cases appears to be Mr. Skilling’s decision to go to trial–strongly suggests that Mr. Skilling is being penalized for exercising his constitutional rights. This is particularly true in a determinate sentencing (or guideline) regime where the potential benefits bestowed on co-defendants for acceptance of responsibility (and cooperation with the government, when applicable) are easily quantifiable.

Accordingly, the question for sentencing courts is whether there is a point at which a permissible plea discount becomes an impermissible and unconstitutional trial penalty. At the very least, when the disparity in sentences between similarly situated defendants can no longer be attributed to easing the government’s burden by entering a resource-saving guilty plea, such a disparity risks being an unconstitutional trial penalty. Such an unjustified disparity, when it violates norms of fundamental fairness and proportionality, may also rise to the level of a Fifth and Fourteenth Amendment violation.

Not only is the trial penalty a horrifying injustice for individuals such as Skilling, it is also a substantial factor in the great waste of the government’s dubious regulation of business-through-criminalization policy.