This is a great article. I have followed the Conrad Black case closely and have been amazed for some time at the ruthless nature of the prosecution. Not only do they freeze assets, and add on ridiculous charges like 15 counts of wire fraud because the document in question contained 15 pages, they also use effective PR campaigns - bringing out the defendant in handcuffs, staging press conferences where they go into detail on the alleged crime before the trial has even begun in order to taint the jury pool. For prosecutors, many cases are not about justice but about winning at any cost - often to further their own political career. If you are unlucky enough to be caught in the sights of a ambitious public prosecutor watch out.
There is another case where the feds threatened a general labourer with 24 years in jail because he helped his boss move some bags of fertilizer. Turned out the government thought the bags might be used as a bomb making material and charged his boss with terrorism charges. He was an 'accomplice' to the crime and given the choice of pleading guilty and serving 2 years in jail or risking 24 years in jail at a trial.
I can see that prosecutors may feel pressure to convict someone that they "know" is guilty but that doesn't make it right. It's not right when I policeman plants evidence and it isn't right when a prosecutor decides he would rather intimidate the accused instead of win his case fairly in court.
I'm not a fan of freezing the assets of someone and then overwhelming their legal defense, but this puts the formerly privileged in the same situation that the poor have -- if you think this is unjust because it deprives people of adequate legal council then you should also believe it is injust that the accused poor also have a lack of adequate representation, but you'll never see that presented in Forbes.
I think the idea is that it's very rare for the indigent to be plausibly charged with an exceedingly complicated crime which is expensive to defend against. Joe-the-common-pickpocket is not at risk of being convicted of a massively technical financial fraud scheme. Public defenders are arguably sufficient to defend against what he might plausibly be charged with: burglary, assault, etc.
Any felony is expensive to defend against for the poor. If you're under the poverty line, $50k for a lawyer is just as out of reach as $5 million. And if death is involved, as it often is in the case of poverty crimes, then you're definitely talking an expensive trial where the defense is easily overwhelmed by the greater resources of the prosecution.
Joe-the-common-pickpocket (or more likely, Joe-the-common-drug-user-caught-in-possession) is very likely to be offered a complicated plea bargain the implications of which are not clear to him and which are not well explained by his court-appointed public defender, and then pressured to accept it in order to save time by everyone involved, including his court-appointed public defender.
Do you have any facts to back up the theory? It's not clear to me that a public defender's office is any less able to defend one case over the other. Public prosecutors allocate resources based on the case, and I'd presume that public defenders do the same.
Poor people are rarely accused of incredibly complex financial crimes or decades of being a Mob boss, nor do they usually have ungodly amounts of government resources targeted personally at them. Apparently the message the Feds are trying to send is "the nail that sticks up gets hammered down"
Should preface this by saying that I am trying to gain a more full understanding of your logic.
I wonder if you could elaborate on what your point is a bit? I'm not following how being "... accused of incredibly complex financial crimes..." makes it more unjust to be deprived of adequate legal counsel than being accused of possessing marijuana, or selling marijuana for instance.
I think jessriedel above made my point a bit more clearly--the amount of resources available to the defendant ought to be roughly comparable to the amount of resources spent by the government on prosecution. For a routine pot charge, a properly funded public defender's office would be adequate.
For the Conrad Black charges, it wouldn't be, but the only reason the Feds brought a case as complex and questionable against Conrad Black in the first place was because of the large amounts of money involved and Black's personal wealth. Allowing him to use that wealth in his defense restores some balance.
Would it not be preferable if both the prosecution and the defense had fairly limited resources? It doesn't seem better to me for both sides to be armed to the teeth...though I'm sure it's good business for the lawyers.
In other words, I agree that balance is required, but disagree that using more wealth to achieve it is the best way forward. Not only does it destroy value in the economy, it begs the questions seen here about the defense of poor people.
I don't see how you could do it without handing the rich a permanent get out of jail free card. The existing law is complicated. It's complicated because we want the right outcome to happen all the time: We want to provide a subsidy for people who import renewable fuels. But we don't want to subsidize people who import renewable fuels, never take them out of train car, send them back to their country of origin and then import them again to collect another subsidy. But we don't want to make criminals out of companies in the business of importing and reselling renewable fuels if they claim the subsidy on multiple train car loads and then someone down the supply chain goes and exports several of them back out of the country. On and on.
The complexity has two results: a) any given person is almost certainly violating a law at any given time, but b) nobody (not even the prosecutor) can tell you which one without spending enormous resources on legal research.
So if the prosecutor isn't given a lot of resources, and the defendant is rich, the prosecutor will likely choose the "wrong" law to charge the defendant with (because they didn't have the resources to find the one the defendant did technically violate), and the rich defendant pays to demonstrate that in court and goes home free.
We could consider the possibility of some kind of means testing, i.e. more resources to prosecutors who prosecute rich defendants, but it falls apart immediately because you can't always tell who is rich. If you're poor but your parents have money, does the prosecutor get extra resources? (Do you then get railroaded if your parents don't like you and won't pay?) How do you tell when someone has a secret research team being financed off book by organized crime?
It seems to me the only thing that can work is to make the law substantially less complicated. And you can't do that at the level of an individual law. If you're going to ban X, you have to cover all the angles of X or you'll have upstanding citizens going to jail and malicious miscreants roaming free.
What we need is to pick which small subset of existing criminal law is worth proscribing and reject all the rest of it. We need to prosecute murder and rape. Do we really need to prosecute computer crimes, rather than just making them a civil matter? We need to prosecute people who dump toxic waste in the river. Do we really need to prosecute recreational drug use, rather than just taxing it to death? We need to prosecute high value tax cheats. Do we really need to prosecute internet casinos?
Stop banning the mostly harmless stuff that everyday people do and we stop having so many prosecutions that the complete inability to pay for them continues to be an enormous injustice.
It's complicated because that complexity serves the interests of the ridiculous factions in congress and state legislatures and the interests of the sprawling "justice" system.
Google "Joe Bruno prosecution".
Mr. Bruno is a former NY Senate leader who probably acted in a manner most people would describe as corrupt. But after a 6 year, multi-million dollar investigation, the Federal prosecutors didn't charge him with accepting bribes (although they leaked to the press that he did that), they charged him with something like 15 charges of failing to provide "honest services". He was convicted of one count, which was subsequently thrown out of the US Supreme Court.
Now, a few years later, they are charging him again for some other related charge, a charge that may be thrown out on appeal on double jeopardy grounds if he loses. The objective is basically to bankrupt the man, who is in his mid-80s.
Most all white collar crime can be summed up with a few high even charges: fraud, theft, embezzlement, submitting a false instrument. We should be getting rid of dumb laws that rig the process for the prosecution (ie. lying to a federal official as a felony act ala Martha Stewart) and judges should be sanctioning (ie. fining) prosecutors who do things like dump 300,000 pages of shit on the defense team.
Poor people are quite frequently the targets of ungodly amounts of government resources personally targeted at them, especially in Texas and certain counties in Southern California. I also suggest reading up on the history of Joe Arpaio and his former D.A. Andrew Thomas for what they did (and in Arpaio's case, is still doing) to indigent defendants in Maricopa county.
I agree with you that the poor get hit by this just as hard. A person who is facing a drug charge who has a few priors will be given the choice of pleading guilt and serving a few years in jail or going to trial and risking 20 years or some such nonsense.
But why should making everyone suffer from an unjust legal system better than the alternative. This is like the socialists who believe everyone being poor is better than some people being rich. "The equal sharing of misery" as Churchill put it, is not a good outcome.
The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so.
I'm pretty skeptical that Black was ill-used by the prosecutors. But even if he were, then as long as he was no more ill-treated than the average drug defendant, then I don't think we should worry about him more than the average drug defendant. And possibly less; Black still has incredible advantages over most of humanity.
>The reason that we should end the "one law for the rich, another for the poor" system we have now is that the system will never get more just unless the people with power have an incentive to make it so.
That only works if the injustice affects sufficiently many affluent people that they act to change it -- and that they act to do more than just solve it solely for the rich. Which is highly unlikely, because those who can't buy their way out of a prosecution with lawyers can buy their way out of it with campaign contributions or outright bribes (but I repeat myself) or calling in favors from politically connected friends, etc.
And even if that wasn't the case, most rich people will never be prosecuted anyway (which is the same reason that most blue collar voters don't vote in anyone who will fix it for their brethren).
But the main reason is that solving it for working class people is hard, because good criminal defense is extraordinarily expensive and indigent defendants themselves can't afford it, but there are so many such defendants that governments can't afford to pay for it on their behalf either. Meanwhile solving it for the rich is easy, because they each have their own money so they just open their wallets and obtain the best justice money can buy.
This is always the problem with the "we'll make the problem worse and then they'll have to fix it" logic. When the problem is extremely hard, making it worse doesn't cause an easy solution to magically appear, it just makes it worse.
The power to freeze assets helps keeps organized crime from using its vast resources to drown the feds in litigation. The flip side is that it can keep rich individuals from hiring high-priced lawyers to defend against the feds (extremely capable and qualified, if overworked) prosecutors.
You have to understand the context a bit. The world in 2012 is a very different place than it was in 1970-1990. There wsa a huge crackdown on organized crime and gangs during this period, which leveraged tools like asset freezes and RICO. These tools have always skirted the boundaries of fairness, but were nonetheless instrumental in the massive decline in the power of organized crime in the U.S. over the last several decades.
It happens all the time, in nearly every case involving wealthy defendants (and especially in cases between or involving corporations). It's the SOP for large-scale litigation firms; indeed, most litigation firms don't know how to practice law any other way.
Or better yet the other other way. Assign the public defense a budget in line with the prosecution's budget.
I was a juror on a murder trial and the thing that was most striking was the huge disparity between the prosecution's team size and resources and the defense's complete lack of any meaningful resource whatsoever. It was a very sad week of my life.
Em, surely the idea would be to get poor people to have a defence as good as rich people, not dragging rich people down. And, its says nothing good that its clear that there is a difference in out come depending on wealth. If some one is innocent, then that should be the out come regardless of money.
Further, defendants are going up against the might of the state, US or other wise. Surely all defendants should have a defence equal of the state, other wise, well, you don't have any justice to speak of at all.
I cant understand why this is not making people want to argue for non rich people to have a decent defence in court.
>I cant understand why this is not making people want to argue for non rich people to have a decent defence in court.
It's because that would break the system. There are over two million inmates in the United States. There is no known or obvious way to provide a reasonable defense for that many defendants in any cost effective manner.
A single good lawyer gets paid six figures. A criminal trial lasts several years through all the appeals. There are millions of accused. Do the math. It's just not happening.
The only way to fix it is to drastically reduce the number of accused so that each can be allocated more resources. So either we need to develop some magic to drastically reduce the number of crimes people commit, or we need to prosecute drastically fewer criminals, or we need to drastically reduce the number of things common people can be prosecuted for. Make your choice.
I agree with your overall point, but public defenders get paid low to mid five figures. In fact, many lawyers do not make six figures. The median attorney salary in most areas is much lower than you'd think.
Do you seriously not see the difference between John having $500 in the bank account and not being able to retain a private attorney and Jack having $500MM in the bank, but it gets frozen by the FBI, removing his ability to retain the attorney he's used for the past 20 years, just to have the FBI possibly give the money back after the case is over (without interest and after Jack's lost his house, mind you).
Edit: I'd love for you to explain your rationale rather than just downvoting me.
Shrug, i didn't downvote the OP, just provided insight (as requested) into why the post has been downvoted.
The tone doesnt have to be flowery and sweet. But the tone should never sound like a personal attack. "Do you seriously not see" implys that the person being replied to is too stupid, or at least incompetent, to see what has been pointed out.
they froze the assets that he was accused of stealing. I see nothing wrong with the assets that were in dispute being frozen until it could be determined (by the court) who was the rightful owner of those funds.
In other words, the question is: should a person be permitted to use funds possibly acquired through illegal activity to defend themselves from a prosecution regarding that same activity?
If I break into your home and steal $10K from your safe, should I be permitted to use that $10K on my defense? Keeping in mind, that if I do so, the $10K will no longer be there... so if I lose, your $10K will be gone.
There is an easy way out of this. If the government seizes any of your assets prior to finding you guilty, they should have to lend you the market value of the assets at no interest solely for the purposes of putting on your defense. If you then lose, you never get the stolen assets back (which go back to the owner) and you continue to owe the government whatever money you borrowed, which they collect as though it were unpaid taxes.
This will understandably result in many defendants borrowing money which they will never be able to repay because they are then sentenced prison, but that's the cost of doing business. Call it de facto adequate funding of the public defender's office.
One other thing (yes, I realize I'm replying to myself): In non-monetary crimes.. burglary, for example.. the accused does not get to hold onto the property they are accused of stealing. It sits in an evidence locker until the trial is over, and then it's returned to either the accused or the victim (or auctioned off).
In a way, the freezing of the funds in a white-collar crime is very similar.
It should also be noted in Black's case, much of his assets were frozen by other (non-US) governments. Here's a Canadian court freezing his worldwide assets, at the request of Hollinger Inc (the company he once controlled):
Well that is his side of the story, which may or may not have any real truth to it. Personally I do not trust a single thing that Conrad Black says. As a Canadian I am upset at how he seems to have used his political clout to get himself a visa and likely have his citizenship restored.
It is well established that if you denounce your Canadian citizenship, Canada will give it back (and in fact, pretend it never happened), at least the first time. Conrad Black is not special in this regard.
I'm surprised by the trend of comments here suggesting that the US government is going after some of these guys too hard. I thought the general perception is that they haven't gone after enough wall street swindlers. For example, I'm not aware of anyone that's gone to jail for the 2007-8 US housing & subprime crash, despite the fact that clear malfeasance wiped out billions of dollars of economic and consumer value.
We might conclude that too many Federal officials had their fingers in the pie, and any prosecution of the Wall Street executives involved would have revealed too much of what went on behind closed doors.
Sure, and in the corporate world it's standard already - director's and officer's insurance covers criminal charges as well. Naturally deliberate criminal acts are excluded, but it'll cover you against the sort of accidents people can make when conducting business.
The government gets around this by ousting their target from their companies prior to laying criminal charges. Once the target no longer has control over their business, the new management can be pressured into dropping / denying the target's D&O coverage.
How can such insurance exclude deliberate criminal acts? Wouldn't it be impossible to determine if such an act had been committed at all, let alone deliberately, until the trial had concluded? If it turned out to be deliberate, what then, do they send you a bill for the lawyer's fees?
While I'm not an expert here (thank god), I believe D&O insurance is one of those things where the insurance companies pays after the fact, when you file a claim. So instead of sending you a bill for the lawyer's fees, they likely would just dispute your claim and not reimburse you.
Interesting, the article says many (presumably non-criminal) securities cases settle because companies are afraid an adverse judgement would void their D&O insurance. I wonder if anyone ever pleads nolo contendere in a plea bargain just to maintain D&O coverage.
You can make a retainer contract with your attorney. If you had the money hidden or in the attorney's protection I suppose you could get around having your assets frozen, but it would be difficult to predict the cost before you've even been accused of a crime.
edit: Maybe it's time for lawyers to start accepting bitcoins for compensation?
Better idea: Get lawyers to accept retainers which are refunded if not used after a number of years, and which is meanwhile invested at interest in market securities. Then you just put a good chunk of your retirement fund into the "retainer" and get it back before you retire if all goes well.
Naturally the lawyers would have to figure out whether (or how best) you could do something like that in such a way that the money couldn't be seized.
In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense. It doesn't guarantee a verdict, but if you've decided you're going to go to trial anyway, you might as well take out the insurance, and I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it.
1)>>>In short, people would take out the insurance right before they commit a crime so they didn't have to pay for their own defense.
2)>>>I don't see how the insurance company could survive in that environment, since the principle of insurance is that most people won't need it.
Require the insurance to be delayed: you must pay into the insurance for X number of years before it can be used. In this case, "right before they commit a crime" will end up being long enough to recoup the costs of the defense. An actuary can help find what number of years is needed for the specific business.
Point 2: All insurance companies are faced with the challenge of survival. They often overcome this challenge by increasing their pool of customers: "most people won't need it" and are profit centers, the few who do need it are the cost centers. Again, actuaries are the folks to call.
It's very distressing (as at least one other poster has noted) that we have this sort of "Aha, but now they are treated the same as the poor people!" thing even possible in our system. It is troubling that there is this obvious built-in bias towards justice-as-a-function-of-wealth.
A somewhat longer-term issue is this: If it becomes common knowledge that the Feds don't fight fair, and that my resources can be used against me and mine via seizure and what not--why do I want to stay in the US and play the game? Even more cynically, why do I want to play a game I can't win according to their rules--wouldn't my money be better spent on dead drops for harassment, assassins, or something against public officials?
I mean, that's the very real risk of this sort of thing, right? That we undermine the values of our society and provide incentives for extralegal defense? And that these measures in turn spur further degradation to "fight the terrorists/crime lords/etc." in one big swooping downwards spiral?
(Edit: The use of first-person is writing style, not intended as "I want to do X to the gubberment" lunacy, etc. etc.)
The Federal government in the US can pretty much screw people it wants to screw. I think that's fairly well established. The same is true in every other country I can think of -- at least in the US the fact remains that if you're genuinely innocent you can have your day in court. If anything characters like Conrad Black get away with -- figuratively -- murder.
The question is -- do we have someone more sympathetic than a guy who looted his own companies and a serial killer to serve as an example of this kind of thing being done to genuinely innocent victims? Forbes may regard Conrad Black as a sympathetic victim, but I don't think most reasonable people would. What the writer of this article doesn't like is that the Federal government will do some very nasty things -- in court -- to people it knows are guilty but hard to convict of their actual crimes.
In most other countries if the government hates you that much you'll have much worse to worry about.
> at least in the US the fact remains that if you're genuinely innocent you can have your day in court
Innocent of what? With a complex and convoluted legal structure, we are all criminals. You are guilty of something. And guess what? Even if you're not guilty of 99 of the 100 counts they bring against you, you're guilty of that one. Hello jail time!
> do we have someone more sympathetic than a guy who looted his own companies and a serial killer to serve as an example of this kind of thing being done to genuinely innocent victims
That's the government's take on things. They can describe you that same way tomorrow and you can scream "I'm innocent!" all you want ... everyone will still think you're a piece of garbage who deserves it.
> In most other countries if the government hates you that much you'll have much worse to worry about.
It is truly a sad day when "other countries" becomes the standard. When the United States of America was born, it was the sole country that elected its leaders and had a constitution that was written specifically to restrict government. Even now, that constitution is in the minority, even though it is the oldest constitution in use to date. Our standard shouldn't be "better than the rest" but rather "better than before".
What I want is an America that is better than it ever was, without regard to anything else.
> Innocent of what? With a complex and convoluted legal structure, we are all criminals. You are guilty of something. And guess what? Even if you're not guilty of 99 of the 100 counts they bring against you, you're guilty of that one. Hello jail time!
Drug convictions aside, are people actually going to federal prison for made up things?
> That's the government's take on things. They can describe you that same way tomorrow and you can scream "I'm innocent!" all you want ... everyone will still think you're a piece of garbage who deserves it.
This is what happens to people accused of blue-collar crimes, not white collar crimes. White collar crimes carry almost no stigma unless a conviction happens.
> When the United States of America was born, it was the sole country that elected its leaders and had a constitution that was written specifically to restrict government.
What a bunch of historically revisionist bullshit. The Constitution initially restricted the federal government, not the government in general. The states had unlimited power, inherited from the British sovereign, except that which they ceded to the federal government. They could lock you up without trial, take your property, deny you free speech, etc.
Close enough to it, see eg. the Lacey Act. Here's a link to somebody who got a two-year sentence in the US for importing lobster tails packed in plastic bags from Honduras, because under Honduran law it was illegal to do so -- and she went to jail anyway, even though Honduras pointed out that the law is off the books.
1) It's against (American) federal law to import wildlife taken in violation of the laws of another country;
2) The people in question took substantial measures to hide their smuggling activity;
3) The amount of illegal goods in question here was valued at millions of dollars.
The fact that it was no longer illegal in Honduras doesn't matter, though the reason why is rather esoteric. In criminal matters, liability requires two concurrent elements: 1) an act; 2) a certain state of mind. You have to have both at the same time--one by itself won't do.
E.g. if I'm in the woods hunting and I shoot and kill someone thinking they are a deer, I'm not guilty of murder because while I have engaged in every action required to commit the crime I did not have the requisite state of mind.
Here, they imported wildlife, and they did so with the knowledge/belief that the wild life had been taken in violation of Honduran law. They were mistaken about whether the wild life had actually been taken in violation of Honduran law, but as a general rule mistakes do not change the outcome unless the mistake negates the state of mind. In this case, their mistake did not negate their guilty state of mind. The result seems harsh, but it's just the symmetry of the rule. It's no more conceptually unfair than say holding someone guilty of attempted murder.
> It's against (American) federal law to import wildlife taken in violation of the laws of another country
> The fact that it was no longer illegal in Honduras doesn't matter
Huh? So in your mind, if you're acting suspiciously, even though you've broken no laws ... you should go to jail?
> They were mistaken about whether the wild life had actually been taken in violation of Honduran law, but as a general rule mistakes do not change the outcome unless the mistake negates the state of mind.
Thought crime? Wow.
> It's no more conceptually unfair than say holding someone guilty of attempted murder.
Yeah, see, attempted murder is a crime because you actually tried to kill somebody. Not because you were just in that "state of mind".
The state of mind of a person is relevant in criminal proceedings. It can be the difference between manslaughter and murder.
But it is not and never has been, a crime in itself. And quite frankly, I've never met a rational person who thought it should be.
It's not thought crime, because it's coupled with action. They didn't just think "bad thoughts" they engaged in a whole operation they thought was in violation of the law.
The "crime" = "action" + "state of mind" conceptualization is the result of the Model Penal Code (http://en.wikipedia.org/wiki/Model_Penal_Code), which is an extremely well thought-out systematization of the centuries old principles of Anglo-American penal law.
Ango-American law has always placed a very heavy emphasis on state of mind, though the Model Penal Code is more rigorous about applying the principle. However, it stops far short of punishing thought crimes, because it always requires a guilty state of mind to be accompanied by action.
As for why this is rational, think deeply about the attempted murder example. Consider A plots to murder B, and with that plot in mind buys a gun and heads for B's house. The police catch him and charge him with attempted murder because: 1) he intended to kill B; 2) he took a substantial step towards carrying out his goal. Why do we punish A? Nobody has actually gotten hurt, and B might not even know he was in danger. Moreover, say A unknowingly bought a defective gun that wouldn't shoot. Is he still guilty of attempted murder? Yep. Why? Because he had the required guilty state of mind but not only that he took action while having that guilty state of mind. We don't punish the state of mind by itself, we punish the convergence of guilty state of mind and action.
In this case, the people: 1) intended to smuggle illegally-taken lobster tails; and 2) actually imported the tails. The secret code they used and their failures to report are evidence that they knew or believed they were engaging in illegal activity. Should we punish them? Why not? How is this situation any different? The fact that the tails are legal under Honduran law is merely a fact like the inoperable gun in the previous example.
Offenses involving contraband or smuggling are usually strict liability offenses, so mens rea is irrelevant in most such cases.
Even granting applicability of mens rea / actus reus analysis here, I believe your analysis is wrong. It's true that attempting to do something actually illegal and failing is often still an offense (usually of the "attempted" variety), but incorrectly believing that what you intend to do is a crime, when it actually isn't, does not automatically make that act criminal. For example, if you think jaywalking is a crime in a jurisdiction where there is no law against it, that will not in itself render your jaywalking criminal. That would be an absurd result.
Yeah, I refer you to my go-to guy for American law - Aaron Sorkin :
Kaffee: It was oregano, Dave. It was 10 dollars worth of oregano.
Lieutenant Dave Spradling: Yeah, but your client thought it was marijuana.
Kaffee: My client's a moron that's not against the law.
Lieutenant Dave Spradling: Kaffee, I have people to answer to just like you do. I'm going to charge him.
Kaffee: With what? Possession of a condiment?
Your interpretation of mens rea is just way off. If I'm driving a propeller boat, and I kill a scuba diver that forgot to post the bouy signalling his presence, then I haven't commited a crime, because I was unaware, and could not reasonably be aware, that there was a scuba diver under my boat.
On the other hand, if there is a bouy, and I drive over the top without killing the diver, and it can be demonstrated that I was intending to harm the diver then yes, I can be convicted for attempted murder. Attempted murder mind you, and not murder itself. This requires that attempted murder be a crime. Back to our erstwhile smugglers, if there is a crime of attempted smuggling then yes, they should go down for it, as they were indeed attempting to smuggle. If the only crime on the books is actual smuggling, then they should waltz out of the courtroom.
The fact that the tails are legal under Honduran law is merely a fact like the inoperable gun in the previous example.
I disagree, largely based on the severity of the attempted "crime." Sneakily importing lobster tails that turn out to be legal is more akin to deliberately driving 75 in what you think is a 65 zone, but actually turns out to be an 80 zone (yes, they do exist). Doing so is not worthy of a speeding ticket.
As krickle said, thoughtcrime (as one word in reference to 1984, of course) is probably the wrong term. Still, outside of violent crimes like murder, I'd prefer to live in a society with a "no harm, no foul" policy. If there is a penalty for thinking you are breaking the law by smuggling lobster tails into the country, but it turns out to be legal anyway, that penalty should be vanishingly small.
They're not made-up things. They're real on-the-books laws and crimes, often used to convict someone who's been deemed undesirable at some level, though the "real" issue cannot be directly addressed.
Look to retrials of persons who've been found innocent of crimes by state courts but are then re-tried in Federal court on related, but distinct charges. Vagrancy laws, sit-lie laws, and the like are used against the homeless (who may in fact be creating other problems). Al Capone was convicted not of racketeering, murder, conspiracy, or smuggling, but of income tax evasion. Stories of traffic stops resulting in drugs charges for incidental possession of prescription narcotics are rife. The kids-for-cash scandal in Wilkes-Barre resulted in juvenile detention stays for minor school offenses, on account of a corrupt relationship between two judges (Mark Ciavarella and Michael Conahan) and the manager of the for-profit detention facility. Similar situations exist in Texas.
The Founders had strong reasons to put restrictions on government in general, both state and federal, due to their experience with both local (crown governors) and national (monarch) levels during the Colonial era.
Did you post that link to the 1776 NJ Constitution under the assumption that nobody would actually read it? Because it is more or less the opposite of what you claim:
* It contains no bill of rights
* It explicitly leaves intact the law of England
* It concerns itself primarily with officeholding (available only to those with considerable fortunes for the time under this Constitution) and voting (available only to those exceeding a monetary threshold)
* It establishes a freedom of religion only for Protestants (thinking this might have been some semantic subtlety of the 1770's that I didn't get, I looked into this further and found that not only does "Protestant" mean exactly what it says here, but that other states explicitly forbade Catholics and atheists from holding office at all in their 1776-1778 Constitutions).
I gather you refer to the modern New Jersey Constitution when you praise the additional rights it grants. I don't think 'rayiner is talking about modern Constitutional law; something about how we resolved slavery in the 1800s suggests that maybe he understands that states no longer have unlimited power.
Neither does the federal one. The bill of rights are actually amendments, which are not included in the main body of text.
> It explicitly leaves intact the law of England
You mean common law? What's your point?
> It concerns itself primarily with officeholding
So did the federal one? Did you even bother reading the US federal constitution?
> It establishes a freedom of religion only for Protestants
This is a blatant falsehood. You should be ashamed of yourself. If you can't understand the text, then keep your mouth shut, instead of spreading nonsense.
Here is the only paragraph that makes a reference to Protestants:
That there shall be no establishment of any one
religious sect in this Province, in preference to another; and
that no Protestant inhabitant of this Colony shall be denied the
enjoyment of any civil right, merely on account of his religious
principles; but that all persons, professing a belief in the faith
of any Protestant sect, who shall demean themselves peaceably
under the government, as hereby established, shall be capable of
being elected into any office of profit or trust, or being a
member of either branch of the Legislature, and shall fully and
freely enjoy every privilege and immunity, enjoyed by others their
It's fairly plain and obvious, but clearly I have to explain it to you. Protestants were heavily discriminated against in the Old World. That's why they left in large numbers. This passage makes clear that they shall not be discriminated against and "freely enjoy every privilege and immunity, enjoyed by others" ...
That is what I assumed to have been the case too; cursory research suggests, no, it means what it says. All persons professing a belief in the faith of any Protestant sect shall be capable of being elected. The NC Constitution, ratified contemporaneously, is even more explicit. So, while I am of course willing to be wrong (I'm an Illinoisan and wasn't taught the NJ Constitution in grade school as I assume you were), I'm not with you yet.
The rest: if you're suggesting the Bill of Rights isn't an important and defining feature of the Constitutional protections 'rayiner is talking about, I strongly disagree. Obviously, they were amendments, but amendments that were ratified within months of the ratification of the Constitution itself.
Not to put too fine a point on it, but the 1776 NJ Constitution sucked compared to the Federal Constitution. The idea that NJ independently provided protections comparable to that of the US Constitution as of 1791 is false.
White collars crime carrys many stigma and long term consequences.
In many states, you lose your voting rights. You lose your right to own a firearm, hold elected office, and serve in a jury, sometimes permanently. You may lose your ability to practice certain professions.
In some states, the state has the ability to restore your civil rights after a Federal felony conviction via pardon or other procedure. Other states will only recognize a Federal pardon issued by the president. Still others will not restore certain rights in ANY circumstance; New York for example profits a pardoned convicted felon from ever owning a firearm.
See, this is the problem - thanks to a decade's worth of state-sponsored smear campaigns, you think Conrad Black 'looted his own companies', when that's just not borne by the facts at all. I wish you luck finding someone who looks more sympathetic after the government finishes up with them.
And while I agree with your statement about 'most other countries', Americans should hold their government to a higher standard.
I gave you a round of applause for stating that Americans should hold their government to a higher standard. Last time I checked we Americans walk around thinking we are the best and most free place in the world. Sometime's it feels like that's a facade though, because when things like feds reading all our emails for little to no reason occur they throw their hands up and say two things, first "I have nothing to hid so I'm not worried about this." followed by "at least we have freedom at all, in insert country name here women don't even have the right to vote." That's all fine and dandy, I'm glad we as a country are better in that regards. How much longer will it last like this though? With our rights eroding away like Niagara falls.
Mark Steyn is not exactly a neutral party in the Black case, which has strong political overtones. The article we're commenting on also puts a fair bit of gloss on the affair; Conrad Black may very well be a well-regarded "historian", but what most reasonable people would call him is "one of the richest people in all of media"; he went into his legal troubles with something close to half a billion dollars in assets.
The dubious and controversial theory used against Black was "honest services fraud". The statute enforcing it does seem to have been perilously vague. But the moral/ethical/pragmatic reasoning behind it isn't; it boils down to maintaining a fiduciary duty to your shareholders or, in Rod Blagojevich's case, to the citizens of the state you govern. Also, Black wasn't merely charged with honest services fraud, but also with charges like obstructing justice and theft, charges that Richard Posner upheld.
Another perspective worth reading is that of the mutual fund company that originally pushed for a special board committee to investigate Black's compensation and other off-the-books financial arrangements with Hollinger. That committee (of the company's own board of directors) uncovered a number of questionable actions that eventually resulted in the criminal probe described in the Forbes article:
> the Federal government will do some very nasty things -- in court -- to people it knows are guilty but hard to convict of their actual crimes
The government can presume the guilt of a party they put on trial. But acting as if that presumption is in fact knowledge, and that such an ends justifies whatever means they require to get there, that is a subversion of justice, IMO. I would rather they didnt do that.
They couldn't get Al Capone on criminal charges so they screwed him for tax evasion. Was that the "right thing" to do? In the end, we have to hold people accountable rather than expect a perfect set of rules to lead to a perfect set of outcomes -- there's no perfect set of rules, and even if there were people would interpret them and create imperfect outcomes.
Speaking as someone with a logical mind, I used to get worked up about the imperfection of rules until it finally dawned on me that they're all socially constructed, and it's the people you need to worry about.
Do you recall the scene in Catch-22 when Nately flies his plane into the ground after accidentally killing someone, and the doctor who is listed as being on the plane doesn't bail out because he isn't actually on the plane, he's just collecting "flight time" to satisfy some idiotic bureaucratic rule. Despite the fact he's on the ground next to all the other people watching the disaster unfold, they decide he's dead and ignore him afterwards.
I fully appreciate that perspective, and agree with they're all socially constructed, and it's the people you need to worry about/ I was thinking through similar issues as I wrote my own comment. If I was a victim of one of these crimes I might even be swayed to subscribe to that view. But on balance, I think the damage done to the system as a whole (see angersock's comment for one example) outweighs the upside of getting one or two bad guys that wouldn't otherwise be caught.
tldr: I'd choose system integrity/reputation over catching 100% of the bad guys. Loved Catch-22 btw.
>> I'd choose system integrity/reputation over catching 100% of the bad guys.
Pretty much my thought. The system is based on the fundamental belief that it is more harmful to convict an innocent person than to let a guilty one get away. This is why there is a built-in assumption that people are innocent until proven guilty.
Al Capone is not a good example because he had a tremendous amount of influence via bribes, extortion, blackmail, assassinations, and the like. This is why he could not be convicted on criminal charges. He was basically an outlier.
If you want to engage in criminal activities that will raise the interest of the FBI, is it really a problem that you wouldn't want to "stay in the US and play the game"? I don't think most people would want you playing those kinds of games here.
What about people who do intend to work within the law, but are uncomfortable building wealth in a country which may deprive them of that wealth when they need it most? Not only guilty people get indicted. I think the previous commenter was right: this could become an incentive for people to take their business elsewhere, or at least keep more capital offshore.
Were it only that clear cut. Which activities, precisely, are criminal? What if I don't know? What if I do something else, the FBI doesn't care, but I happened to have accidentally banged DA's car door or something? Or cursed at a TSA agent?
There are very bad people out there, and we certainly don't want them--I wouldn't argue that anyway. But there are a lot of technical criminals who probably don't even know it.
That rule assumes that it is possible for a reasonable person to know what actions are within the law and what actions are not. Many laws, particularly those dealing with corporations, the tax code, etc., are so complicated that an ordinary citizen can't possibly know whether they are in compliance or not.
Interestingly, when I talk to DOJ or SEC prosecutors, I have heard the opposite. They are concerned because the whitecollar defendants (e.g. Bernie Madoff) they try to prosecute have access to much larger legal teams than the feds who are operating on very limited resources.
true - I didnt mean to hold him as an example of overwhelming the prosecution with his resources (just as an example of the type of white collar crime I was referring to). He is, however, an instructive example in a different way - $1B of the assets that he stole have never been found. DOJ lacks the resources to trace the complex paper trail to figure out where it went (as a DOJ friend of mine said, "The money can always move faster than we can"). So, while he was convicted, someone somewhere is really, really rich, and the feds don't have the resources to recover the capital and return it to the victims.
The fifth amendment requires the defendant to be indicted by a grand jury before facing trial. I think the article overstates the power of the US Attorney to bring charges (if perhaps only only in theory).
Sol Wachtler, once chief justice of New York, said that any district attorney worth his salt could get a grand jury to indict a ham sandwich. (For what it's worth, Wachtler found himself on the other side of the law some years after he said that.)
Federal grand juries are stricter than grand juries at the state or local levels, but state and local grand juries will indight a ham sandwich (in many instances, grand juries have erroneously indicted the victim of the crime rather than the alleged perpetrator), so this is a very low bar. All the prosecutor has to do to satisfy the grand jury is show sufficient evidence that the defendant could have committed the crime.
Such aggressive prosecution has a lot do with the elected nature of sheriffs and DA's, a peculiarity of the US system. The political nature of enforcement and prosecution seems to change incentives towards maximizing conviction rates and publicity of high-profile convictions... sometimes it would seem at the expense or beyond what would be optimal for society or the crime.
Loser pays would likely be better for the rich, but even worse for the poor - if you're a poor murder suspect or drug user being pressured to accept a plea bargain rather than risk a much longer sentence, adding in the costs of the fancy prosecution case makes it that much worse.
Simple (& naïve - NAL) fix: Equal budgets for more equal justice.
If assets are frozen, require the prosecution to estimate what they will
spend prosecuting the case and to unfreeze assets of the defendants'
choice at least equal to the prosecution's estimate, to be allocated to
provide for the defendants' defense.
Let the court require weekly up-to-date accounting from the prosecution,
with a proviso that if the prosecution submits inaccurate reports or goes
over their estimated budget the case is decided in the defendant's favor.
Note also that a large percentage of convictions involve a defendant
pleading to a lesser offense.
Or, as others here have suggested, simply give public defenders’ offices a budget comparable to the prosecutors’ offices.
If the interests of justice make it worth spending $100K of taxpayer money to prosecute someone charged with a relatively simple crime, then it’s also worth giving that person access to $100K worth of defense lawyering. If the government wants to spend $5M to prosecute an alleged mobster, that alleged mobster should have access to $5M worth of defense.
If the mobster has allegedly ill-gotten gains and the government wants to freeze them, then $5M of those gains would be placed in escrow; if the defendant is acquitted or later proves that the money was earned legitimately, then it would be deposited back into the public defenders’ fund.
>If the mobster has allegedly ill-gotten gains and the government wants to freeze them, then $5M of those gains would be placed in escrow; if the defendant is acquitted or later proves that the money was earned legitimately, then it would be deposited back into the public defenders’ fund.
I read this wrong the first time, but the thing I thought it said is an I idea I'm now very happy with: We should make all asset seizures from guilty defendants (which don't have identifiable victims) go to the public defenders' office.
That would in one fell swoop provide a significant amount of funding for the chronically underfunded public defenders' office, and deprive law enforcement of the perverse incentive to engage in de facto theft by asset seizure solely for the purposes of padding their own budgets (because at present that is often where it goes).
That's arguably a good point, but I think it's mitigated substantially by the fact that the overwhelming majority of those defended by the public defenders' office haven't had their assets seized (because they haven't got any), and any individual defendant with so many assets having been seized that it starts looking like a value proposition for the public defender to throw the case has probably got enough extra stashed somewhere, or enough friends, that they aren't being defended by the public defender anyway.
I'm not saying it would never happen, but it would certainly be a lot more rare than "hey look, this shady fellow has got a lot of money, let's prosecute him instead of criminals who are causing more damage to society because it's more profitable to the law enforcement agency who gets the money."
Edit: It would also be possible to just remove the moral hazard. In the rare case where the public defender is counsel for a defendant whose assets have been seized, then in that case if the defendant loses the assets don't go to the public defender, they go somewhere else. Like, say, lead abatement: http://news.ycombinator.com/item?id=5006368
Edit 2: Really, you're probably right. I think I'm just defending it because I had a thought late at night before thinking it through and immediately posted it, and now I feel like I should be defending my idea even if it isn't any good. Almost all of these "x found money is allocated to y thing" plans are the wrong way to go -- the amount of money something needs to operate is unrelated to the amount of ticket revenue or asset seizures or whatever.
But it shouldn't be allocated to law enforcement either, for the same reasons. That is what really needs to be changed.
Maybe it all should go to lead abatement -- putting it in the general fund just hands the perverse incentives to Congress. Allocating it strictly to lead abatement puts it in the hands of people with no obvious relation to asset seizures and so no obvious ability to unjustly increase the number of seizures or fraudulent guilty verdicts for pecuniary gain, and solves a serious problem that also happens to be an extremely cost-effective use of the money.
The supporting argument is that, if proven guilty, there might not be enough assets left over to compensate victims. Also, in some cases to prevent the alleged perpetrator form fleeing. The problem is scenarios as described in the article. The issues that I see in this is a)that funds unrelated to any crime are frozen/held and b)there is no recourse when proven innocent. There almost needs to be some mechanism to hold funds while leveraging them for defense, in the similar way to a bail bond. As far as rich mobsters, having prosecutors resorting to vague statutes of unrelated crimes (wire fraud instead of murder) is indicative of a larger issue with the criminal justice system (as well as many other scenarios in comments here.) Creating obscure, vague, all encompassing statues to snare criminals, and ever more frequently, the ignorent and unwary white-collar, is not representative of an effective and fair social justice system.
The law has never been so black and white and simplistic. For hundreds of years there has been due consideration given to the fact that litigation must to an extent freeze the status quo ante to account for the fact that it takes finite time.