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Sunday, August 17, 2014

Rick Perry's Indictment and Protecting The Public

Usually a Friday afternoon news dump is a way of releasing bad news and hiding it in plain sight, usually to avoid or reduce scrutiny.

Consider that the news of Texas Governor Rick Perry's indictment in Texas came down Friday afternoon.

Perry faces two felony charges of "abuse of official capacity" and "coercion of a public servant" by threatening to exercise his veto power over a bill to authorize funding for the Public Integrity Unit operating out of the office of the Travis County District Attorney unless the head of that office, Rosemary Lehmberg, resigned. Lehmberg was targeted for removal by Perry after her arrest for driving under the influence. 

The legalities of the indictment are too wide for immediate discussion here (and more facts need to be revealed, frankly). But some initial observations give serious concern. I start with the least troubling, and work up the ladder.

This type of case threatens to make Texas government less efficient (although government efficiency is often at odds with liberty). It is not a good precedent to have political decisions become criminalized. This suggests that the criminal code is vague, perhaps unconstitutionally vague. More troubling: Do Texas elected officials need to seek pre-clearance from the local prosecutor? Is the county prosecutor the de facto final word in Texas government? 

If the district attorney can indict any elected or appointed official for a disfavored political action or policy decision, you know who's really in charge. Putting partisanship aside, this cannot be good. Period.

But more importantly, this type of case weakens the legitimacy of the criminal justice system and the rule of law. The primary role of the justice system is to see that "justice is served," and that objective depends upon the public's respect for the system. (A case in point is provided by the widespread public protests of the Civil Rights Era.) When overtly political prosecutions are brought, the public's skepticism in fundamental, impartial justice is warranted and encouraged. Unfortunately, such cases also give cover to those who are serious lawbreakers, who would use arguments as to the illegitimacy of "the system" to excuse their own misconduct, avoid detection or responsibility or retaliate against legitimate authority. In all cases, society at large and the rule of law are weakened.

Bonafide criminal activity needs to be deterred before it occurs. Illegitimate or highly questionable prosecutions weaken the reputational cost imposed on suspected wrongdoers (which is the classic and often the most powerful penalty), and in so doing, reduce the cost of criminality. The punishment for wrongdoing, the societal disapproval, is reduced; the flip side is that bad behavior becomes less disapproved and more tolerable, even in polite and so-called law-abiding circles.

When legitimate crimes become viewed as partisan or as a cost of doing business, the power of disapproval is diminished or destroyed. The effect is to make real crime socially acceptable.

And when you give a ready moral cover of "injustice" or "partisanship" to prosecutions, the result is that you get much more dangerous crime.


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