Saturday, July 29, 2006

When Judges Punish For Exercising One's Right To Trial

Professor Podgor over at White Collar Crime Prof Blog has a post about what is quickly becoming a trend in sentencing issues sending a white collar criminal away for life.

Here is the rub. We often complain that the poor get screwed while the rich usually get a slap on the wrist. The Enron scandal got the attention of Washington, and as Washington is wont to do, it over-reacted. Now we have the spectacle of watching(usually)old men, who have worked gainfully for years, provided jobs and support to others, supported charities in their communities, and who are not well suited for long term imprisonment to begin with, be carted away for 20 or more years.

The proletariat in me says, "well they do it to twenty something minorities all the time, why not the fat cats? The realist/conservative in me says "It costs me a ton of money to care for these guys and the chance one of them will commit another crime is next to nothing so, what's the point?

I am sure that deterrence is one point, but deterrence only works when it punishment is used uniformly. You see, the government is giving the store away on sentencing on these cases...If you waive your right to a trial and plead guilty.

In the case Ellen Podgar is talking about above, the co-defendants who forwent trial received 28 months. According to the Miami Herald, the defendant in the above case faced a minimum of Thirty (30) years if convicted. His co-defendant's faced a maximum of Six(6)years, and received far less.

Professor Doug Berman makes some keen observations on the effect this has on the right to a trial here.
Berman's money quote is as follows:
" The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist."

Now I am not arguing that the government "has a right" to try to save us the money and the time it takes to try a case. Plea bargaining makes the system work more smoothly and moves out cases that do not need a trial to resolve. However I would agree with Ellen Podgar when she says:
" With sentence differentials like these, it may start coming down to whether the accused is willing to take a risk, as opposed to whether the person believes they are innocent and have a constitutional right to a jury trial."

No one should have to face a choice of being able to walk away with a veritable slap on the wrist if he pleads but if he puts the government to the test he gets life. It is not only inherently unfair, (after all if the case is worth 28 months without a trial can it really be worth 30 years with one?)but it begs the question, are we in the business of doing justice or are we just here to process arrests. Saving money is great, but not at the expense of justice.

Let me be clear here. I am not suggesting jail for the banker here is certainly required. What I am afraid of is that someone who is not guilty will plead guilty to avoid a longer jail sentence if convicted than if he pleads guilty. I am not for the imprisonment of innocent people. Sentencing the guilty to life on a white collar case sends a message that even if you think your innocent, it is better to take the deal. That is wrong.

I often hear people say if someone pleads guilty then they must be guilty because "they would never say they did something they didn't do, even if it meant life in prison"... of course life in a federal prison is never facing them when they say that. Thirty years...That's a long time in prison, especially when no one got physically injured and the chance of recidivisim is nil.

I hope what sentence and plea bargaining in cases like this doesn't deter the wrong thing. It is meant to deter someone else from committing the same crime. I don't think that works. I just hope it doesn't deter an innocent person from seeking to explore that innocence at trial.
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