It can, and it has. The title of the linked article, “Ham Sandwich Nation: Due Process When Everything is a Crime“, by Glenn H. Reynolds, better known to the Blogosphere as the Blogfather or more technically as Instapundit, sums up the conundrum. How meaningful is the notion of “due process of law” when the government (i) can make pretty much anything it pleases into a crime carrying multiple years’ imprisonment and millions of dollars’ fine as its punishment, and (ii) has zero, as in none at all, restraint on which persons it chooses to drag through the hedges backward, and how fast, and for how long?
I don’t practice criminal law, and so I’m not personally exposed to the prosecutorial dynamics that Reynolds describes. I do know for a fact that it occurs, and not just at the federal level. My friends who practice in that area routinely describe the kinds of over-charging and grand-standing which produces prosecutorial outcomes driven less by the answer to the question, “What harm has been done to the peace and dignity of the State and its citizens?” than by the questions of, “How much juice does this guy have and what kind of ink will the story get?”
In our own little corner of paradise, if you bounce a $75 check at Tractor Supply Company you’re going to be arrested. If you steal $500,000 of construction loan proceeds from a bank (which our legislature has specifically defined as within the theft statute, punishable by the amount misappropriated) by spending it on your own unencumbered project, or by chasing women, or by paying your credit card bills from Bass Pro Shops, our local district attorney will look at you and say, “That’s a civil matter.” No it’s not, jackass; it’s a crime and at a half-million it’s well into Class B felony range.
Around here, if you get caught with a half-burned spliff in the ashtray of your car, your next stop is the grand jury. If you’re moving cocaine by the brick, and your wife and the prosecutor’s wife happen to be buddies, when the drug squad drops on your house out of the blue, they’re not likely to find a single trace of the stuff. If you’re the county mayor and a long-time elected official, and you gaze upon the employees’ health insurance add-on coverage premiums, withheld from the employees’ wages for the purpose of paying for additional insurance coverages beyond the basic package paid by the county and you plunder those premiums to pay ordinary operating expenses of the county because you and the county legislative body can’t get off your butts and balance a budget (or even pass one), and then the premiums get three months in arrears with threats of cancellation for non-payment being made, not only do you not get prosecuted, it’s not even reported in the local birdcage liner.
Don’t even get me started on the boondoggles of the various “drug interdiction” squads. They’re the guys you see hanging about the interstates in brand-new vehicles with more stuff sticking out of them than you can say grace over. No kidding; I was in the navy in the late 1980s and our battle groups got regularly trailed by Soviet “fishing trawlers” that never seemed to put a net in the water, yet had so many antennae poking out that they looked like a porcupine. In our state, most of the cash they seize the specific squad gets to keep to fund itself. I’ve heard from several people with first-hand knowledge that what I had suspected would go on in fact has gone on and continues. They’re not interested in actually breaking up the drug transportation networks. What they do is seize the cash, give the driver a nice lenient bond, and then when he skips make no terrible effort to go get him. In the meantime they keep up-grading all their vehicles and gee-gaws, building brick-and-mortar headquarters offices well-furnished with all the latest gimcracks, hiring all their buddies, and getting nice raises and benefits. Well. Congratulations to us; we’ve now given law enforcement officials a direct, immediate cash interest in the continuance and expansion of criminal activity. How’s that likely to work out, over the long run? How long will it be until the drug cartels figure out that all they’ve got to do is set up patsies with sufficient cash to keep the Drug Task Force folks in new SUVs, write it off as a cost of doing business, and go on their merry ways? Have they already figured it out? Not to sound too tin-foil-hat about it, but have Arrangements Been Made? Drop a dime on a particular vehicle, to the effect that it’s carrying $35,000 in small bills, then when the photo-op is going on quietly send through the $1.4 million, or the forty kilos of smack. Based upon scandals that are known to have occurred in law enforcement, can anyone say in good faith that such a thing would not be thinkable?
Among Reynolds’s suggestions, I particularly like the suggestion of requiring the government to bear some portion or all of the defense costs for bogus charges which they have no reasonable basis to think can be proven beyond a reasonable doubt. I question, however, whether that would truly work any change in behavior so long as District Attorney Schmuckatelly gets to send the bill up the chain for someone else to pay. Make the prosecutor’s office pay for it out of that office’s budget, including the salaries of the district attorney general, his assistants, and all others in that office who exercise any discretionary power in respect of prosecutorial decisions, including the rent for the space, including pension benefits and insurance benefits, so that the stakes on either side of the game are more similar, and then you might see some greater attention paid to the issue of whose life do we choose to wreck. It’s a sad commentary on human nature, but the basic truth is that people at all levels make different decisions when they think they’re spending someone else’s money.
Finally, I wanted to observe the irony of Reynolds’s opening his article with a quotation from Robt Jackson. The man knew whereof he spoke. As chief counsel for the IRS under FDR, it was Jackson who was instructed to bring criminal charges against Andrew Mellon, who’d been Sec’y of the Treasury under Hoover, for having claimed certain deductions from his personal income tax liability. Jackson did it. He actually indicted the former Treasury Sec’y and dragged him through the hedge backward and very, very publicly. FDR got huge amounts of fawning press. There was only one little ol’ problem with the situation: The actions for which Mellon was prosecuted were expressly permitted as legal under the income tax laws then in effect. And Jackson conceded as much (in writing, if I recall correctly), but went ahead with the prosecution. His payoff a few years later was an appointment to the U.S. Supreme Court. The whole sordid tale is told in Amity Schlaes’s The Forgotten Man. I read it and my admiration for Jackson, whom I’d previously held in pretty high regard, evaporated. I mean, that’s not even a close call; he should have been disbarred.
Unless and until something changes, we none of us have any greater protection from what Reynolds describes than our own obscurity. Until then, we live in a piss-off-one-wrong-person universe, where all its takes is one person with enough juice and an axe to grind to go see the prosecutor, and the next thing you know you can’t make your mortgage payment because it was either that or pay your defense lawyer, or the forensic accountant, or the DNA analysis, or the independent investigator.