Saturday, September 24, 2005

The Trial Tax

Over at Crime and Federalism, Mike argues that the tough criminal sentences handed out to white collar offenders constitutes a trial tax.

Now, I have already spoken unsympathetically to those who sympathize with the "poor little rich boys" who just can't help themselves from stealing from the corporate coffers, defauding investors, or obstructing justice and are supposedly "punished enough" by the humiliation of being caught. But I want to be clear about a couple of things: First, everybody's sentence should be fair and proportionate, whether they are convicted by trial or plea. Second, states should do a better job of screening prisoners, such that those who pose no realistic risk of flight or of harm to other prisoners are not housed in medium to maximum security prisons. Third, there should not be a "trial tax" - and courts should work to minimize any appearance of a trial tax. (Particularly where plea bargaining enters the equation, in my humble opinion, rationalizing a "trial tax" on the basis that somebody who pleads guilty shows more "remorse" than somebody who goes to trial doesn't cut it.)

Meanwhile, I wouldn't mind seeing those who advocate for the "poor little rich boys" say a word or two about the effect of the criminal justice system on criminals who breathe less rarified air. You know - the ones who have to mortgage their homes to pay for their lawyers, to bear the public stigmatization of charges, to have their families stressed by the accusation and the burdens of trial, and who certainly don't have a few million dollars in the bank to fall back on even if they are ultimately acquitted. Or, for that matter, those who enter pleas to inappropriate charges, or who are wrongly convicted because they could not afford an adequate defense, investigative help, or necessary expert witnesses.

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