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January 31, 2007

Equal justice or just the realities of ratting out?

One can learn a lot about modern sentencing realities by reflecting upon yesterday's sentencing of Cosmo Corigliano, the former CFO of Cendant Corp. who was a "significant cog" in a massive accounting fraud that cost "119,000 investors more than $3 billion."   As detailed in this AP account, Corigliano and two other executives, Anne Pember and Casper Sabatino, who cooperated with authorities all received probation.  Meanwhile, by virtue of exercising their constitutional right to go to trial, Cendant's Chairman Walter Forbes "was sentenced to 12 years and seven months in prison, while Vice Chairman E. Kirk Shelton received a 10-year sentence."

This is just another example of why, under modern sentencing realities, a defendant may be much better off being and knowing he is very guilty rather than perhaps being and believing he is innocent.  Very guilty defendants (like Corigliano and Andrew Fastow in Enron) quickly figure out they should cut a deal to cut their losses.  But, defendants who may believe in their innocence, often opt to exercise their right to trial, a choice and a gamble that now can cost a defendant the rest of his life behind bars.

Of course, these dynamics are not just in play in white-collar cases.  Consider again the extreme mandatory minimum punishments and prosecutorial choices in the Genarlow Wilson (background here and here) and border agent cases (background here and here). 

Wilson's companions were clearly guilty of rape, so they pled guilty and got much shorter sentences.  Wilson exercised his right to go to trial, was acquitted of the most serious charges against him, and yet was still sentenced to 10 years in state prison.  Likewise, the border agents refuse a plea offer to a short sentence from the federal prosecutor because they believed their non-fatal shooting of a Mexican drug smuggler was justified.  After losing at trial, they got hammered with sentences of 11 and 12 years of imprisonment.

So, to return to my rating of injustices, how do we rate the injustice of a "significant cog" in a massive accounting fraud that cost "119,000 investors more than $3 billion" only getting probation?

January 31, 2007 at 10:00 AM | Permalink

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Comments

Not only did those two receive jail sentences, they each received restitution orders of over $3 B(yes, a B, not an M)illion dollars.

Posted by: Brian | Jan 31, 2007 10:44:59 AM

Prof. Berman,

This dilemma doesn't only divide co-defendants of the same offense, but also a single defendant. Take (as a most recent example) the case of Julie Amero, the substitute teacher convicted of having pornography on her computer in class. Apparently, there was on offer of only probation. She rejected it and now faces up to 40 years.

It is common knowledge (at least in my jurisdiction) that if you reject a deal and go ahead with a Motion to Suppress and then lose, all offers are off the table (at least the reasonable ones) and you go ahead to trial (and obviously face the risk of a very stiff sentence).

Makes one wonder why short of an iron-clad defense anyone would go to trial.

Posted by: Gideon | Jan 31, 2007 6:05:55 PM

I think that all plea deals should be made illegal. If prosecutors have a case they should make it, otherwise they should dismiss the charges. If the legal system does not have the personnel to try all crimes they are presented with, then Congress should appropriate enough funds to hire enough people to handle the load. They shouldn't spend a dime on pork for their districts or friends.

Posted by: John Famularo | Jul 21, 2007 1:31:18 PM

I think that all plea deals should be made illegal. If prosecutors have a case they should make it, otherwise they should dismiss the charges. If the legal system does not have the personnel to try all crimes they are presented with, then Congress should appropriate enough funds to hire enough people to handle the load. They shouldn't spend a dime on pork for their districts or friends.

Posted by: John Famularo | Jul 21, 2007 1:32:36 PM

John, are you trying to get in touch with me?
krazekat@triad.rr.com
love to hear from you, don't want to join classmates.com...just a voyager

Posted by: Kathleen Gafa(Heintz) | Nov 20, 2008 10:38:13 PM

Mr. Famularo,
I agree with your solution to our system of law. Plea bargains allow prosecutors a way out of minding defendant constitutional protections. Judges then swoop in to sentence defendants to long sentences to deter future defendants to enforce constitutional protections. Defense attorneys are aware of these "incentives" to plea and advise unsuspecting and weak willed defendants to plea.

The try it or drop it approach to criminal charges would be costly but a lot more fair. It would also put more pressure on the government to follow the same laws they expect citizens to follow.

Posted by: Libertarianman | Oct 26, 2009 10:46:08 PM

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