More on the trial penalty’s impact in white-collar cases

A helpful reader sent me this column from the Financial Times that spotlights some of the trial penalty issues I recently discussed in this post.  Here is a snippet from the column:

The urge to find guilt has overwhelmed the presumption of innocence on which Anglo-Saxon justice is based….  Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.

In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences.  It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron.  Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK.  Yet, apparently, it is regarded as perfectly reasonable in the US….

Now imagine that you might face such a sentence if found guilty.  Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury.  You might suppose you had a one-in-five chance of being found guilty.  That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team.  What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?

The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do.  To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture.  That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.

Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use.  The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent.  But the fact that they have made a plea of guilty does not prove their guilt.  It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.

UPDATE: Tom Kirkendall at Houston’s Clear Thinkers now has this long post examining “The real NatWest Three deal.”