Professor Podgor Pops The Question

With so much to lose by going to trial, how many organizations and people will plead guilty to white collar crimes they didn’t commit? Ellen Podgor (left) of Stetson University College of Law and the White Collar Crime Prof Blog asks that question in her latest essay, “White Collar Innocence: Irrelevant in the High Stakes Risk Game.” She looks at three defendants who claimed their innocence at trial but were convicted — Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling. And three who pleaded guilty and avoided trials — KPMG, Gene Foster, and Andrew Fastow. The first group, as everyone knows, got clobbered. The second group, Prof Podgor says with considerable understatement, enjoyed reduced sentences and finite results.

“The pronounced gap between those risking trial and those securing pleas is what raises concerns here,” she says. “Some refer to this as a ‘trial penalty’ while others value the cooperation and support the vastly reduced sentences.”

In Olis’s case, for example, she points out that the ‘trial penalty’ paid by the former Dynegy tax executive convicted of accounting fraud resulted in “an initial sentence that was 288 times greater than a non-risk taker and an eventual sentence that was approximately seventy-two times greater than a co-worker who decided not to take the risk of going to trial. [Olis’s] boss, who also did not risk trial, received a sentence less than one quarter of what Olis received.”

No wonder guilt or innocence doesn’t always figure in decisions to fight white collar charges in court. For individuals, the trial penalty can mean sitting in jail for decades (or as long as they survive); for organizations it can mean a corporate death sentence. Plea bargaining, though, removes the risks and limits the damage.

When the amount and quality of law enforcement are just right, when the guilty are usually punished and the innocent usually go free, we call it the “rule of law.” Most of us don’t think much about the rule of law. We enjoy its benefits and take it for granted, forgetting that it’s a rare blessing — and very fragile. So when the rule of law is out of balance and someone points that out, we should be grateful. Ellen Podgor is someone we’re grateful for.

Her essay, “White Collar Innocence: Irrelevant in the High Stakes Risk Game,” can be found on SSRN here. It’ll be published soon in the Chicago-Kent Law Review.
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