A frequent topic on this blog has been the government’s questionable tactic of bludgeoning business executives into plea bargains by playing on the executive’s fear of a draconian prison sentence (often an effective life sentence) if the executive has the temerity to assert his or her Constitutional right to a fair trial by jury. Although prosecutors justify such tactics as a reasonable tool in seeking the truth about criminal acts of others, plea bargainers often undermine that goal by testifying falsely in order to obtain the favorable terms of the deal.
In this post, Ellen Podgor — who blogs with Peter Henning over at the smart White Collar Crime Prof blog — compares the sentences to date arising out of the prosecutions of former WorldCom executives, notes the wide disparity between those who cooperated with the government and those who did not, and then asks the right questions:

With the disparity in sentences so far (25 years for Ebbers in contrast to others), sentences not based solely on the culpability of the individual but significantly premised on cooperation, will defendants in other cases be encouraged to cooperate? . . . one also has to wonder if the incentive for cooperation is too high and may result in encouraging individuals to provide cooperation that may not be truthful.

What happens to the individual who is last to be indicted when there is no one left to talk against and no way to provide cooperation? What happens when the the accused has nothing to offer in cooperation because they did not see or hear anything? Are we punishing these individuals with heavier sentences merely because they have nothing to offer the government? Should we be afraid that they will invent something to tell the government just to obtain a reduced sentence?
The Bill of Rights provides everyone accused of a crime with the right to a jury trial. Are we punishing individuals who avail themselves of this right?

Yale law professor John Langbein has written extensively regarding prosecutorial abuse in the American plea bargaining system, and he identifies the problem in the following manner:

“Plea bargaining concentrates effective control of criminal procedure in the hands of a single officer. Our formal law of trial envisages a division of responsibility. We expect the prosecutor to make the charging decision, the judge and especially the jury to adjudicate, and the judge to set the sentence. Plea bargaining merges these accusatory, determinative, and sanctional phases of procedure in the hands of the prosecutor. Students of the history of the law of torture are reminded that the great psychological fallacy of the European inquisitorial procedure of that time was that it concentrated in the investigating magistrate the powers of accusation, investigation, torture and condemnation. The single inquisitor who wielded those powers needed to have what one recent historian has called ‘superhuman capabilities [in order to] . . . keep himself in his decisional function free from the predisposing influences of his own instigating and investigating activity.'”
“I cannot emphasize too strongly how dangerous this concentration of prosecutorial power can be. The modern prosecutor commands the vast resources of the state for gathering and generating accusing evidence. We allowed him this power in large part because the criminal trial interpose the safeguard of adjudication against the danger that he might bring those resources to bear against an innocent citizen — whether on account of honest error, arbitrariness, or worse.”

This situation reminds one of the scene in the movie The Aviator to which Larry Ribstein has referred on several occasions. In the scene, Howard Hughes asks Senator Brewster if he wants to go to war with him, and Brewster says:

“It’s not me, Howard. It’s the United States government. We just beat Germany and Japan. Who the hell are you?”

What really is the bigger problem to American society and the rule of law? Criminal business executives or out-of-control prosecutors?
My answer is here and here.