Wednesday, February 25, 2004

Tort Reform Redux
Below is my response to comments by a friend questioning whether the same sort of tort law reform should be passed into the criminal law sector. Just for the record, if anyone reading this knows my prior work experience, these views are mine and mine alone. I do not represent any group or entity. My response:

On a perverse level I would be all for extending the loser pays sytemt to criminal law. Considering the conviction rate in the Federal system, it would certainly reduce the costs to the taxpayer. Even on the state level, the state would most likely win out. Especially if you consider investigative costs etc. Unfortunately, I don't have any empirical evidence to back this up, so I could be completely wrong.

Regarding criminal law specifically, I do believe some reform would be great. I have two proposals, 1) a loser pays system, and 2) the forfeiture of a percentage of net worth assets for those convicted, really a punitive measure, which would be used to defray investigative costs, as well as public defender fees for indigent defendants.

First, the fair way to handle a loser pays system would be to have individuals who don't have public defenders pay for government legal fees (most likely not investigative fees, as that would be too onerous). Similarly, if a defendant paid for his own defense and was acquitted, the government should pay his fees.

I don't think it would make prosecutors less aggressive as it would probably work in the government's favor. However, local police departments would have a problem with it, because of the number of people who are arrested who aren't prosecuted, DUIs, simple assaults, trespassing, etc. You would probably have to have this loser pays system only for people actually charged. Some defendants would lose out incurring some legal fees, but then again, at least they're not being prosecuted and the costs would not be too great.

As for the second proposal, the punitive measure, I think we should have a rolling percentage of that individual's net worth taken for a conviction, with some sort of low threshold for poor defendants. For example, if someone has a net worth greater than $100,000 they should lose a percentage of what they have greater than that amount depending upon at what point they plead guilty or are convicted at trial.

My reasoning for these proposals is not exactly the same as the tort issue. On the criminal side, I just don't believe taxpayers should have to pay for the costs of crime. I think we should bleed people who commit crimes, over a reasonable net worth. They are the ones who benefit the most from society and, if they choose to violate the law, they should pay the price. I would say it should only apply to felonies. You could even come up with a scale similar to the sentencing guidelines which accounts for the severity of the crime.

The punitive measure's sliding scale of the percentage would be based upon at what point the defendant was convicted. If you turned yourself in and confessed, 10%, when first approached by govt agents, 25%, after indictment 50%, just before trial or during trial 75%, and if you go to trial and are convicted 90%. The money should first go to repay victims which would make it more than punitive but a restitution measure, then for government costs.

Of course, this all smacks of some capitalist bargaining with justice. However, indigent defendants who are already covered by public defenders would not be affected. In fact, indigent defendants would benefit, if the government could defray the costs of investigation and prosecution and more money would be available for public defenders. Or, the funds recovered from convicted defendants could go into public defenders' budgets.

There might be a downside to the fact that prosecutors may not want to charge the wealthiest defendants who can afford to pay for the legal dream team, if the government would have to reimburse them if acquitted. Again, a study of what percentage of defendants charged are convicted would have to be done, as well as looking at the amounts to be received from the seizure of assets for investigative costs. I'm pretty certain, the government would end up on top. Of course, there would be additional pressure on defendants to plead guilty. Some might say this additional burden would make it more likely for an innocent defendant to plead guilty. However, it is certainly more fair to the defendant acquitted who has spend large sums of money to save himself from going to jail.

In extending my tort idea to criminal law, we have to keep in mind there is a vast difference between the government's interest in a criminal prosecution and the plaintiffs in a tort suit. The government generally has no personal interest in bringing the case. The people involved are faceless bureaucrats who, biggest difference of all, do not receive any form of commission. So, I would argue reform is more urgent in torsts, as there is not the same level of abuse in the criminal system as the tort system.

The amount of self-interest involved in a tort suit makes it much more ripe from abuse. When it comes to prosecution, there are often as many people complaining about the government's lack of prosecution as there are those complaining there is too much.

Nonetheless, the same sort of loser pays system could be extended to the criminal system.

No comments: