Daniel J. Mitchell

Whether we’re talking about NSA spying, cross-border collection and sharing of private financial data by tax-hungry governmentspointlessly 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 avery 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 passwhen 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.


Daniel J. Mitchell

Daniel J. Mitchell is a top expert on tax reform and supply-side tax policy at the Cato Institute.