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Monday, February 22, 2010

Destigmatizing Crime: Going After Toyota

Carmaker Toyota announced Monday that it is under criminal investigation in connection with certain alleged defects in at least one of its models.

Defective parts or design flaws are one thing. The consequences are undoubtedly serious. But unless there is wanton negligence rising to the level of gross, why investigate this as a potential crime?

The criminal law has several objectives. One of them is retribution, the satisfaction of the desire for revenge. Another is deterrence.

A criminal investigation of Toyota may satisfy the former but is unlikely to satisfy the latter. In fact, it may result in criminal prosecution of people who intended no wrong.

There can be an unintended consequence. As more people are prosecuted for unintentional acts (de facto strict liability) the general consensus among the population may shift to a growing skepticism that people under investigation are not just entitled to the presumption of innocence, but that they may be presumed to be unfairly prosecuted. This could mark a reversal of the current state in which a target of an investigation is presumed innocent in the eyes of the law but often viewed as guilty by most news readers and media commentators. This change could be prompted the more you see outcome-based investigations where the decision to assign blame is made well in advance of any collection of genuine, reliable evidence.

Such popular skepticism and outright scorn is the norm in oppressive regimes where the authorities are viewed as corrupt and the rule of law is considered a Kafkaesque joke. We should make sure our authorities use their discretion properly and avoid quick rushes to judgment. For in their haste to chase headlines and pursue personal career ambition, these prosecutors place the popular faith in the authorities in jeopardy and risk actively destigmatizing real crime. A society in which crime lacks any stigma will experience more crime.

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