January 5, 2012

TEN YEARS AGO ON INSTAPUNDIT: Why not apply “loser pays” to the government?

I think that in a criminal case it should be mandatory. As the criminal justice system works now, it’s really a species of “taking.” Consider: if the government chooses to prosecute me, I can (1) spend a lot of money to prove myself innocent; or (2) go to jail. (They won’t provide me a lawyer unless I’m poor, which I’m not). My paying for my lawyer is an integral part of the process of justice, which benefits society as a whole, and I’m essentially forced to do it. (When the alternative is going to jail, “forced” isn’t too strong a word.)

Perhaps, if I’m guilty, then the legal fees should be considered part of the punishment. But if I’m innocent? The government has just forced me to spend a lot of money to ensure the efficient function of the justice system. (Prosecutors, remember, aren’t supposed to want to see the innocent convicted, so they’re as much beneficiaries of my defense as I am.) The efficient functioning of the justice system is a public good. We’re not supposed to take private property for the public good unless we provide “just compensation” to the owner.

But if I’m an innocent defendant, where’s my “just compensation?” Oh, the McDade Amendment (which the Justice Department absolutely hates) lets me recover my legal fees if I can show that the prosecution was harassing, malicious, etc. But that’s only part of the problem (and recoveries here are hard to come by anyway). What if I’m just a poor schlub? I can be — probably will be, unless I’m loaded — financially ruined, only to get a “sorry, sucker, but at least you don’t have to go to jail” at the end.

When you add to this the enormous financial resources of the government, and the absence of any market discipline — or, usually, any political discipline except in high profile cases — then a “loser pays” rule in criminal prosecutions seems fair to me. Any thoughts?

Still seems that way to me.

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