Crime and Punishment

Greedy Prosecutors

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A typical middle-aged guy with no criminal record, who started taking prescription meds for back pain, became addicted, and got caught, would be treated leniently if he agreed to seek treatment for his addiction. But if you’re famous, perhaps a famous Republican in a pivotal Democratic jurisdiction, they try to nail you.

Limbaugh can afford good legal representation and will probably come out OK. But what does this episode say about the local prosecutors? Maybe there’s so little crime in Palm Beach that they have nothing better to do than pursue this marginal case.

Or maybe the prosecutors’ proposed plea deal was so harsh because it was designed to be rejected (as Limbaugh’s attorney did). The obvious implication is that the prosecutors are either 1) Democratic hacks out for revenge for the 2000 election (or simply against a prominent Republican), 2) trying to prolong resolution of this otherwise minor case in order to advance their own careers, 3) trying to force Limbaugh to go to trial, which would be extremely costly in foregone income to him, even if he were not convicted, or 4) all of the above.

UPDATE: The Florida Attorney General isn’t playing along with the prosecutors, and the prosecutors are backpedaling:

Limbaugh’s attorney, Roy Black, questioned [Palm Beach County State Attorney] Krischer’s motives and said the release was part of a smear campaign. Prosecutors said they believed they were doing the right thing after consulting the law, the attorney general and the Florida Bar. But there was nothing in writing to support or refute their claim that they were following legal advice from the attorney general.

That changed Wednesday with the release of a letter to Palm Beach County prosecutors from Patricia Gleason, general counsel for the attorney general. The letter lent credence to Limbaugh’s claim that the release of the records was improper.

”In this case,” Gleason wrote, “… it seems to me that the purpose in contacting me about this issue may not have been to obtain impartial advice on an open government issue, but rather to use a part of our conversation to justify your office’s decision that the documents should be released. This is disappointing to me personally and professionally.”

Prosecutors dispatched a written reply to Gleason Wednesday stating that they were confident in their decision and consulted her only ”to see if there was anything we may have missed” while researching the issue.

That last quoted paragraph is a doozy. So the prosecutors already knew the answer with confidence but asked the AG anyway? Yeah, right. I’m sure that if the attorney general, a conservative Republican, had agreed with them they would have used his opinion as cover for their treatment of Limbaugh. That would have helped them, and hurt him with Florida Republicans. But he was smart enough not to let the prosecutors use him, so now they are claiming he’s irrelevant. What a bunch of jackasses. It’s too bad they can’t be impeached. (Or can they — does anybody know?)

Moral Hazard

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Former FBI agents are interviewed and defend the Bureau’s longstanding de facto practice of overlooking serious crimes, including murder, that are committed by informants.

Several said they would never protect known killers, but others said it was defensible in some circumstances.

“You have to weigh the odds of whether killing one or two people is better than killing a whole planeload,” said Wesley Swearingen, whose service as an agent from 1959 to 1977 included tours in Los Angeles and Chicago.

For example, he said, agents ignored the murder of a small-time mobster by an FBI informant in Chicago in the 1960s because “the information that the FBI was getting was more important. Somebody in the mob is going to kill that person anyway.”

The utilitarian logic here is difficult to refute, but it’s not the real point. The point is that tolerating a murder of which you have foreknowledge is not far removed morally from participating in that murder. We don’t allow government agents discretion to commit murder in situations where doing so might prevent more murders. Why then do we allow them to use informants as subcontractors to do, in effect, the same thing?
Clifford Zimmerman, a Northwestern University law professor who studies informant practices, says it is immoral, and perhaps illegal, for agents to shrug off violent crimes.

“They’re doing their own little cost-benefit analysis and really not taking into account, in my opinion, the damage to society that these people are causing,” he said. “Is a federal official entitled to make that decision — that one person’s life is more valuable than another’s?”

It’s even worse than that, because the government officials who make these decisions aren’t neutral judges. They benefit from the murders but don’t pay any of the costs.