The MSM and blogosphere are buzzing over Kozlowski's and other white collar defendant's sentences. They are arguing that these sentences are too harsh. In making these arguments, they're missing the most important reason for stiff sentences. The sentences must be harsh, though not to deter or punish. Rather, the sentences must be harsh to keep white collar defendants from going to trial.
All trials carry the trial tax. If a defendant demands a jury trial, he will receive a much harsher sentence than if he plea bargained away his rights. As one judge told me: "I tell the defendants that if they order the full menu, they pay the full price." Plea bargaining is unconstitutional, but it is how over 95% of cases are resolved. Plea bargaining is needed, and thus tolerated. We failed to heed C.S. Lewis, who quoting Milton, wrote: "'Useful,' and 'necessity' was always 'the tyrant's plea'."
If there weren't harsh sentences, white collar defendants would go to trial, since they'd have nothing to lose. And since they can afford top-flight counsel, they'd often win. It is unacceptable for white collar defendants to escape the trial tax. Sentences like those in the Kozlowski case will remind defendants to think twice before going to trial.
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