Maybe I Need to Re-Think my Position

A couple of years ago, the U.S. Supreme Court over-turned a death sentence.  If my memory is correct (and I can’t say with certainty that it is, because I don’t follow such things very closely and in any event I’ve slept since then), the perp had committed a murder for which he was tried, convicted, and sentenced to death.  Given how hard it is to be sentenced to death, it must have been a genuinely horrible crime.  Here was the kicker:  He had been a minor when he committed the crime.  He was tried as an adult.  As I recall, the court had no problem with the decision to try him as an adult, or with the conviction itself.  But it reversed the imposition of the death penalty on (and you’re really taxing my feeble mind now) 8th Amendment grounds, or maybe it was 14th Amendment grounds.  Whatever.  There was a good deal of outrage at the time because the majority opinion specifically rested not so much on American principles of justice and notions of constitutionally permissible state action, but on supposedly international notions of “justice” and what the rest of the world allegedly might think about it.

Back in the 1950s, Chief Justice Earl Warren — a fathead by any reasonable standard — claimed for the court the status of seers, and further effectively ruled that the court’s fevered imaginings had the force of constitutional law.  In Trop v. Dulles, 78 S.Ct. 590, an army private who deserted his unit, in wartime, had been court-martialed and convicted and had been, as prescribed by Act of Congress then in force, deprived of his U.S. citizenship, applied for a passport, which was denied on the basis that he was not a U.S. citizen.  He alleged that denationalization was a “cruel and unusual punishment” proscribed by the 8th Amendment.  Warren agreed.  “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  No.  Seriously.  This kind of claptrap passes for constitutional jurisprudence in some quarters.

So it is now with reference to some mystic chords of memory (to borrow one from Lincoln’s First Inaugural) running from the Supreme Court, not to whoever the hell it is in the American polity who determines what is “decency” and how its “standards” “evolve” over time and in which direction (remember that’s very much a two-way street; there was once a time in Germany when trucking millions off to be summarily executed by reason of where they went to church would have been stoutly rejected), but rather to those folks’ international counterparts that we are to derive the extent of our constitution’s mandates and proscriptions.  Color me chauvinistic, but I’m just not sure that’s a real sound idea.  I mean, at the risk of pointing out the obvious, in large areas of the world it’s considered well within the boundaries not only of “decency” but “honor” as well to slit your teenage daughter’s throat because you disapprove of her boyfriend.  In India these days it sure seems to be within standards of public decency to gang-rape not only the local women but tourists as well.  I defy those black-dressed boobs on that bench to articulate for me a morally defensible, logically delimited algorithm for deciding just which standards of international “decency” and notions of “justice” should be engrafted onto a constitutional system that’s done just fine without them for over 200 years, and which we ought to leave be.

On the other hand . . . .  There generally is an other hand, isn’t there?

From 2010 to early 2012, the president of Germany was a chap named Christian Wulff.  He resigned in February of that year in the face of criminal charges of corruption stemming from his days in the government of Niedersaschsen (Lower Saxony).  Without boring Gentle Reader with details, it was a long, drawn-out affair only slightly less salacious than the investigation and impeachment proceedings against Clinton.  They actually took Wulff all the way to trial, earlier this year.  He was acquitted by a jury.

Now a formal request has been made to initiate criminal and disciplinary proceedings against the prosecutors.  The accusations fall into two groups.  The first relates to the relentless pursuit of Wulff himself, with numerous examinations of witnesses, searches, and ever-new, and uniformly irrelevant, avenues of inquiry opening up and being pursued doggedly to their dead-ends.  A large amount of what the prosecutors dredged, plowed, and (see below) leaked, it is alleged, really had nothing at all to do with what Wulff was accused of having done.  Here in America we would call that malicious prosecution, or abuse of process, or most colloquially, “Easter-egging” or “witch hunt.”  The purpose of this ever-expanding dragnet was, according to this accuser, not the illumination of public corruption but the keeping alive of the investigation for its own (political) sake.

The second group of accusations relate to the usual leaking of sensitive personal information, none of it germane to whether Wulff was or was not guilty of public corruption, but the intent and effect of which was personal and political embarrassment.

In short, the German prosecutors are accused of what American prosecutors routinely do.  Only this time, if the justice minister of Lower Saxony bites, the hunter may become the hunted.

Absolute immunity for prosecutorial abuse is a purely judge-made doctrine (did we mention how many judges are former prosecutors?).  It has no foundation in statute or constitutional law.  It has no basis in simple logic.  The dynamics of over-indictment, succinctly described in The Blogfather’s wonderful and highly readable article “Ham Sandwich Nation,” 113 Colum. L. Rev. 102 (2013), is just the tip of the iceberg.  The distressing fact is that a prosecutor who decides to ruin someone’s life either for personal or political reasons is nearly impossible to bring to book.  For every Michael Nifong (he of the Duke lacrosse-rape abomination) there are scores if not hundreds of prosecutors who use highly politicized and publicized prosecutions as nothing more than rungs on their ladders of advancement.  It is all too easy to end up bankrupt, unemployable, one’s family ruined, and generally a social pariah without even getting to a trial, much less being convicted, and with no recourse at all against the person for whom you were nothing more than a canvas on which to paint his “tough on crime” slogan.

Lest one think that this sort of thing just does not happen, I refer Gentle Reader to the story of what FDR’s Internal Revenue Service did to Andrew Mellon, who had been Hoover’s Secretary of the Treasury.  The whole sordid story is told in Amity Shlaes’s The Forgotten Man, which I’ve already linked to a number of times, but which deserves to be read very carefully.

So it will be interesting to see whether these prosecutors in Germany have to answer, personally, for their misbehavior.  If so, then perhaps this precedent will be useful in arguing for some of them evolving international standards of decency to be imported into American law.

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