Defiant Defendants and Corrupting Incentives

I’d like to present some excerpts from a prosecution brief in the sentencing of Raj Rajaratnam. Lawyers for Rajaratnam, who is to be sentenced this week, point out that the sentence the prosecution is requesting—19.5 to 24.5 years—is much longer than other insider trading defendants have received. Counsel for our government reply in part:

“[U]nlike Rajaratnam, Chiesi accepted responsibility for her crimes and pled guilty. . . .

“[U]nlike Rajaratnam, Kurland accepted responsibility for his crimes and pled guilty. . . .

“[U]nlike Rajaratnam, Hairi accepted responsibility and pled guilty to his crimes. . . .

“[U]nlike Rajaratnam, Moffat accepted responsibility and pled guilty to his crimes. . . .

“[U]nlike Rajaratnam, Drimal accepted responsibility and pled guilty to his crimes. . . .

“[U]nlike Rajaratnam, Cutillo accepted responsibility and pled guilty. . . .

“[U]nlike Rajaratnam, Longueuil accepted responsibility and pled guilty to his crimes. . . .”

The inference the government emphasizes is often false, and when it is true, it may be because the government is corrupting criminal defendants.

Although a guilty plea is legally an admission of guilt, we cannot infer from this that the defendant thinks he has done something legally or morally wrong. A plea may mean nothing more than that the defendant thinks going to trial is a bad bet. Even a defendant who thinks he is more likely than not to prevail at trial might choose a plea bargain if forced to choose between risking a harsh sentence for a long list of crimes and accepting a light sentence for only a few of those charges. Likewise, a defendant who knows he can be proved guilty, but regards the law as unjust, has a strong incentive to plead guilty.

This incentive gains teeth when defense lawyers see briefs like this, in which the government argues that defendants convicted at trial, such as Rajaratnam, should be sentenced more harshly than those who plead guilty to the same offenses. Whatever is added to the sentence because the defendant exercised his right to a trial is in effect a punishment for exercising that right, and it will tend to deter future defendants from doing so.

Coercing defendants into pleading guilty diminishes the protection provided by the right to a trial, and all the attendant rights such as the right to counsel, the right to a jury, and the right to cross-examine witnesses. It results in the punishment of innocent people. And it can have the effect of expanding the reach of criminal laws , because it seems to ratify prosecutors’ interpretations of them. Only by coincidence does the result of a plea bargain ever resemble the just outcome in a case.

When prosecutors coerce a defendant into changing his mind, they make the law an engine of moral corruption.

In a society governed by law, no one should go to prison except because he has actually been convicted, having had all the protections the law affords, of violating the law. In a society committed to the presumption of innocence, no one should be afraid to make the government prove its case. And in a society committed to the liberty and dignity of the individual, no one should be bullied into giving up the opportunity to defend himself in court.

But set aside the issue of defendants who plead guilty while believing themselves innocent. Imagine, for the moment, that a guilty plea means, as the prosecution evidently wants the court to take it to mean, that the defendant agrees that his action was illegal, and perhaps even that the defendant agrees that it was morally wrong.

In some of these cases, the defendant believed even as he was committing the acts for which he is being prosecuted that those acts were illegal and, perhaps, immoral. In such cases, a lighter sentence rewards him for committing his legal and/or moral wrong knowingly.

But suppose a person believes, when he is arrested, that he has done nothing illegal or wrong. Then the government is threatening him with punishment not only for his proscribed act, but—to the extent that the punishment if he goes to trial exceeds what he would receive on a guilty plea—for maintaining his belief in his own innocence. And if he then pleads guilty and means it, he has changed his mind while under this threat.

The fundamental requirement of a human life is to think for oneself. In order to live, a person must try to understand reality—and that means he must form and change his judgments only by interpreting the evidence. To change your mind in order to please others—rather than because new evidence or new arguments convince you that your previous opinion was mistaken—is to suppress this vital virtue. Yet this is what prosecutors demand when they require, on pain of a harsher sentence, that defendants who think themselves innocent “accept responsibility” for their “crimes.” When they succeed in coercing a defendant into changing his mind, they make the law an engine of moral corruption.

Rajaratnam’s prosecutors depict him as, in contrast to the defendants in their litany of guilty pleas, refusing to surrender his intellectual independence even when facing sentencing: “Rajaratnam’s post-conviction statements show that he remains defiant that he never committed insider trading and, incredibly, he maintains that the line between legal and illegal conduct was not always clear to him. . . . Rajaratnam’s post-trial statements to Probation are remarkably similar to his trial defenses.” Those statements, made in the course of the sentencing process, “do not reflect the proper respect for the jury’s verdict, the evidence in the trial record, or the laws against insider trading.” This defiance, the prosecutors say, should be held against him at sentencing.

But the same principle applies at the sentencing stage as at the plea stage: To join the authorities in condemning one’s actions in order to placate those authorities would be to violate one’s own cognitive independence. If Rajaratnam’s sentence is enhanced because he refused to surrender his judgment, a man who has been accused of corrupting others to gain stock tips will be sentenced, in part, for showing that the government has failed to corrupt him.

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