Sunday, March 7, 2010

A Unit Cost Theory Of Prosecution

Robert Wilson was charged with conspiring to commit mail fraud and aiding and abetting another to make false statements on a tax return. When he was arrested, he claimed he was broke. A public defender was appointed, and, after a six-week trial, Wilson was acquitted. Only it turns out that Wilson wasn't so broke after all. As a result, the trial court ordered that he repay the government some $52,000 for the cost of his defense.

The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.

In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.

Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.

I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.

The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.

At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?

Hat Tip: Crime and Federalism: http://www.ca6.uscourts.gov/opinions.pdf/10a0057p-06.pdf

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