Whether we’re talking about NSA spying, cross-border collection and sharing of private financial data by tax-hungry governments, pointlessly intrusive money-laundering laws, or other schemes to give the state more power and authority, we’re often told that “if you’re a law-abiding person, you have nothing to fear.”
But that assumes government is both competent and trustworthy.
You don’t have to be a crazed libertarian like me to realize that those two words are not a good description of Washington.
The IRS scandal is just one recent example of politicians and bureaucrats behaving badly. Heck, this blog is basically just a collection of examples illustrating the incompetence and venality of the public sector, augmented by my snarky comments and economic evangelizing.
That being said, while we may get irritated by government waste, senseless snooping, and onerous taxes, we’re actually lucky.
The people who really suffer are the law-abiding folks (like Martha Boneta) who wind up in the crosshairs of less-than-savory folks in government, which includes not just politicians, but also some law enforcement officials and oftentimes ambitious prosecutors.
And you could be next, even if you’re a goody-two-shoes type who actually obeys speed limits. Simply stated, government is so big and has so many laws that every one of us is probably guilty of something.
And if we cross the wrong bureaucrat, our lives may be ruined – particularly since there are very few checks and balances to restrain these petty tyrants.
Professor Glenn Reynolds (a good guy despite teaching at the University of Tennessee Law School) addresses this issue in a very good article for the Columbia Law Review.
Here’s some of what Professor Reynolds wrote, starting with a brief explanation of the underlying problem.
Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. …prosecutors’ discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books. …If prosecutors were not motivated by politics, revenge, or other improper motives, the risk of improper prosecution would not be particularly severe. However, such motivations do, in fact, encourage prosecutors to pursue certain individuals, like the gadfly Aaron Swartz, while letting others off the hook—as in the case of Gregory, a popular newscaster generally supportive of the current administration. This problem has been discussed at length in Gene Healy’s Go Directly to Jail: The Criminalization of Almost Everything and Harvey Silverglate’s Three Felonies a Day. The upshot of both books is that the proliferation of federal criminal statutes and regulations has reached the point where virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution.
I’ve already written about the unfairness of giving David Gregory a free pass when ordinary citizens are punished for similar offenses, so I’m in full agreement that this is a problem.
More specifically, we can’t trust that prosecutors are motivated by justice.
In many cases, we’re talking about deeply flawed individuals motivated by a lust for political power (such as my former debating opponent Elliot Spitzer).
Self-aggrandizing prosecutors seem more than willing to deliberately target certain individuals for unfair persecution, so we need some way of clipping their wings.
Glenn mentions the approach that you might find in a Civics 101 textbook, but he also notes that it’s not an effective check on government abuse.
Traditionally, of course, the grand jury was seen as the major bar to prosecutorial overreaching. The effectiveness of this approach may be seen in the longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich. Grand jury reforms—where grand juries still exist—might encourage grand jurors to exercise more skepticism and educate them more. But grand juries are not constitutionally guaranteed at the state level, and reforming them at the federal level is likely to prove difficult.
So what, then, are the potential solutions?
Glenn’s first suggestion is that immunity for prosecutors should be relaxed.
Overall, the problem stems from a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little “skin in the game.” One source of imbalance is prosecutorial immunity. The absolute immunity of prosecutors—like the absolute immunity of judges—is a judicial invention, a species of judicial activism that gets less attention than many other less egregious examples. Although such immunity no doubt prevents significant mischief, it also enables significant mischief by eliminating one major avenue of accountability. Even a shift to qualified, good faith immunity for prosecutors would change the calculus significantly, making subsequent review something that is at least possible.
In theory, lawyers (such as prosecutors) already can be punished for misconduct. But other lawyers are the ones in charge of determining whether misbehaving colleagues should be disbarred or otherwise penalized.
Needless to say, members of a club generally are reluctant to punish other members of the club.
So reducing immunity would be a good idea.
Glenn’s second option is to impose a variant of “loser pays.”
Perhaps the prosecution could be required to pay a defendant’s legal fees if he or she is not convicted. To further discipline the process, one could implement a pro-rate system: Charge a defendant with twenty offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.
As an economist, I instinctively like this idea. It’s always a good idea to make people bear the costs of their own actions.
But there’s a catch. Prosecutors wouldn’t be bearing the costs. You and me and other taxpayers would have to cough up the money.
However, perhaps “loser pays” could be structured so the money comes out of a predetermined budget for salaries and benefits of prosecutors and staff.
Since they are probably overpaid, like most government bureaucrats, I imagine this idea would have the desired impact on their actions.
The third option – and it’s a big one – is to get rid of plea bargains.
The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. …Our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.
I don’t know enough to opine on this proposal, but the status quo obviously isn’t any good, so maybe it’s time to think big.
Glenn also adds an additional point about narrowing the definition of a crime, or at least what “offenses” carry criminal sanctions.
It is also worth considering whether mere regulatory violations…should bear criminal sanctions at all. …with the explosion of regulatory law, every citizen is at risk of criminal prosecution for crimes that, as David Gregory’s defenders noted, involve no actual harm or ill intent. Yet any reasonable observer would have to conclude that actual knowledge of all applicable criminal laws and regulations is impossible, especially when those regulations frequently depart from any intuitive sense of what “ought” to be legal or illegal. Perhaps placing citizens at risk in this regard constitutes a due process violation; expecting people to do (or know) the impossible certainly sounds like one.
When you look at the perverse forms of government persecution included in this post from earlier this year, Glenn’s point becomes even more persuasive.
I’ll just add one more way of constraining the legal system, and that’s jury nullification.
Judges and prosecutors hate the concept, which suggests to me that it’s probably a very good idea in certain cases.
[…] Even if you’re a law-abiding person, you should support civil […]
[…] officials could probably indict, convict, and imprison almost all of us. Needless to say, that’s not how a free and just society should […]
[…] officials could probably indict, convict, and imprison almost all of us. Needless to say, that’s not how a free and just society should […]
[…] of society creates opportunities for bad people in government to target minorities (or other groups that fall into disfavor). And if it’s danger to ride a train while black, then it’s […]
[…] of society creates opportunities for bad people in government to target minorities (or other groups that fall into disfavor). And if it’s danger to ride a train while black, then it’s […]
[…] make sure that government behaves properly and respects constitutional rights while investigating and prosecuting […]
[…] https://danieljmitchell.wordpress.com/2013/07/10/yes-you-have-something-to-fear-even-if-youre-a-law-a… […]
Sidney Powell’s forthcoming books “License to Lie.” I should know better than to write when I am tired, and I just finished mowing the lawn. I want to get that title right because I suspect it may begin the change we need.
Apologies for my mistake.
Too few of the public realize how great the risk is to innocent people. Civil rights lawyer, Harvey Silvergate, wrote about this in a disturbing true crime book, “Three Felonies a Day.” I wrote it about in a semi-fictional legal suspense novel, “Accidental Felon,” which includes many true stories that worry the victim of prosecutorial misconduct. And a new book will be released shortly by federal appeals attorney Sidney Powell, “Liberty to Lie,” with more true stories of prosecutors trampling the constitutional rights of victims.
Unfortunately, those who read these books and this column already have some idea of how the courts work against us, how we are judged guilty before stepping into a courtroom, how negligent attorneys are “sanctioned” by, at most, a suspension for a few months, then allowed to return to “practice,” with no oversight to assure they will not continue to do as before.
If we want to bring about the needed change, it is incumbant on all of us to spread the word, educate relatives, friends, neighbors. While I have little confidence in elected officials, it certainly does no harm to try to educate them, as well, and get them to take action on behalf of the ideals of our constituton.
[…] Amen to all that. And you can read more on this topic by clicking here. […]
[…] Just look at how the White House turned the supposedly professional IRS into a partisan political operation. The government had power, ostensibly for a legitimate reason, but politicians and bureaucrats then used the power is a grossly improper fashion. […]
[…] want government to successfully and rationally fight crime and stop terrorism. That’s a perfectly appropriate libertarian sentiment since protecting life, […]
[…] want government to successfully and rationally fight crime and stop terrorism. That’s a perfectly appropriate libertarian sentiment since protecting […]
[…] https://danieljmitchell.wordpress.com/2013/07/10/yes-you-have-something-to-fear-even-if-youre-a-law-a… […]
Have you ever innocently walked out of a store with unpaid-for merchandise?
I have. My wife has. I suspect most folks have.
A dear friend walked out of a K-Mart store a couple years ago and into a nightmare. She was stripped of her clothes, searched, jailed in a county-issue jumpsuit, held in a holding tank surrounded by ultra-sketchy people, some barfing on the jail floor in their drunkenness, fired from her job as a swimming and diving coach, vigorously prosecuted by the state that devoted two veteran prosecutors to the case, and endured a day-long trial, then finally acquitted of shoplifting by the court.
Over less than $40.00 worth of stuff.
The kicker is, our friend clearly had no intention whatsoever to steal anything. Intent to steal is a necessary element of the crime of shoplifting in Florida. No intent, no crime.
Our friend is in her late 30s, mom to four kids present with her at the K-Mart that day, notoriously distract-able, and had never been in trouble before.
Despite K-Mart’s destruction of surveillance video that would have exonerated our friend and our friend’s sterling reputation, the State of Florida prosecuted her to the full extent of the law.
Turns out, the State Attorney’s office was running a little contest. Prosecutors were being awarded for convictions obtained in various categories of crimes.
Because shoplifting cases rarely go to trial, none of the SAO’s prosecutors had yet picked up that gold ring of a shoplifting conviction. So these two prosecutors were motivated, not by the cause of justice, but rather the purely mercenary cause of getting that rare shoplifting conviction for purposes of winning the SAO’s little contest.
Forget the utter year-long Hell this fine young woman and her family endured. The state expended thousands and thousands of our tax dollars to devote two prosecutors to a $40.00 case that K-Mart botched from the get-go when it destroyed the surveillance.
Worse still: There but for the Grace of God go I. And You!
Well put. And I like your blog mission statement:
Heck, this blog is basically just a collection of examples illustrating the incompetence and venality of the public sector, augmented by my snarky comments and economic evangelizing.
Criminal law abuses are minor, relative to the abuse of our tort system for dispute resolution, which affects not only the parties involved, but the entire business community. Litigation avoidance creates huge costs for society.
To combat this, I propose a “Less Reasonable Pays” alternative, which is a modification of “Loser Pays”, also called the “British System”, used in about 10 different states, to promote or inhibit certain behaviors.
Under the “Less Reasonable Pays” system, both sides present final demand and offers in a pre-litigation conference. While the two parties can settle at any time, if the case goes to trial, and the defendant is found liable, the jury must pick the more reasonable outcome, from those two remedies. The party found less reasonable must also pay all legal fees and court costs.
This accomplishes four objectives: First, the two parties are forced to take reasonable positions early in discussions, which should lead to early settlement, since early settlement on reasonable terms will be far less egregious than the possibility of adding legal fees and court costs.
Second, even if the case does go to trial, the outcome will be reasonable.
Third, this should stop abuse of the court system. An arbitrator might require that an outrageous litigant place potential legal fees in escrow, before proceeding with the case.
Fourth and most important, both parties will be more open to settling disputes without going to court.
For more on “Less Reasonable Pays” see: