Super-blogger and law professor Doug Berman argues that yes, it is, in this interesting post over at Sentencing Law and Policy.
Berman analyzes the case of Marian Morgan, who received a 35-year federal prison sentence for running a Ponzi scheme that stole $28 million from 87 victims. Morgan's husband, John, pled guilty and got a 10-year sentence. Morgan was offered an 18-year plea bargain but opted to exercise her constitutional right to go to trial. Her reward: 35 years in federal prison, no parole.
Because Ms. Morgan chose to put the government to its proof, her sentence was doubled. While we can kind of appreciate the fact that going to trial is tough and uses up government resources, can anyone justify adding 17 years to a sentence to punish someone simply because she chose to go to trial?
The Department of Justice (DOJ) has often expressed concern that the advisory federal sentencing guidelines are creating unacceptable disparities in federal sentencing, particularly in white collar/fraud cases. But the DOJ is tellingly silent about sentencing disparities created solely by the fact that one person goes to trial (and pays dearly for it) and another person doesn't (and gets off with a much lighter sentence). Prosecutors are the party chiefly responsible for triggering the trial penalty by seeking sometimes wildly enhanced sentences when defendants elect to exercise their constitutional right to trial.
If the DOJ's real concern is reducing sentencing disparity, the disparities from the trial penalty must be targeted, too -- a job prosecutors must take the lead on accomplishing.
Berman is skeptical that the DOJ really cares about reducing this kind of disparity, though:
If DOJ is truly concerned about unwarranted sentencing disparity in financial fraud cases — rather than, as I fear, really just concerned about the post-Booker potential for unwarranted sentencing leniency or about some defendants who have the temerity to exercise their trial rights not having to pay an extra heavy sentencing price — then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal to the Eleventh Circuit. But I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes.In other words: the DOJ only gets upset when someone receives what the DOJ views as too little time, not too much time -- especially if that person went to trial.
What do you think about the trial penalty?