"Loser pays" is a popular idea for liability law. In theory it discourages frivolous lawsuits--and encourages settlement as soon as it's clear that you're going to lose. Naturally, the idea is unpopular with the trial lawyers (who frequently get their fees paid by the defendant anyway, as a part of the settlement). But it does seem to work in Europe.
So why not apply the idea to criminal lawsuits, asks Radley Balko on twitter. Radley, one of my favorite journalists, spends a lot of time chronicling the damage caused by abusive prosecutors and police investigators. Not infrequently, that damage is magnified by less-than-competent defense: overwhelmed public defenders, or bargain lawyers without the resources to contest the government's array of investigative and forensic firepower. It seems like it would be nice to balance the scales a little bit.
But as with many superficially appealling ideas, you have to look at the second and third order effects: what will your idea look like when it's gone a few rounds with the system you're trying to change. Scott Greenfield argues that it wouldn't be so attractive:
The problem is that defendant often begin their defense in a delusional state of absurd denial, grasping onto odd straws that they, their spouses, their great aunt in Selma, the guy on the corner, assert with absolute certainty will result in their freedom. And this is before they find religion.
Introducing a financial incentive to secure a conviction to the already overwhelming incentives that drive cops to coerce confessions and nudge identifications, and prosecutors to bury the Brady and provide excessive coaching to their victims, is just fuel to the fire. If the defendant would recover his legal fees (and how much was recoverable according to a judge's vision of reasonable fees is another issue, but one that will never need to be addressed), the money would have to come from somewhere, some budget. Whose? Which bureaucracy would be willing to take the hit? Which piece of the prosecution side would be strong enough, honest enough, reliable enough, to ignore the potentially ruinous financial consequences and maintain fealty to the rules and Constitution?
And why, if the group's devotion to justice is so strong, can't they be trusted now, without the additional burden of a financial incentive?
Then we have the judiciary, which costs money to run as well. The judges don't hold bake sales, but depend on the legislature to fund their operations. If the decisions of the judges end up busting budgets, even a little bit, the power of the purse will come to bear. It may be subtle. It may be blatant. But it most assuredly will be, as politicians are disinclined to suffer the anger of their constituents when they have to raise taxes to cover gaps that judges could close. While we may not have much judicial independence now, there will certainly be less when there is money involved.
And finally, we come to the beneficiaries of the concept, the defendants. Already, defendants are faced with unbearable choices, to plead or fight. The equation is now a difficult balancing act of risk of conviction and severity of sentence. The discussion is brutal, as few defendants have any appreciation of the weight or nature of evidence, or why all their really good reasons why they shouldn't be convicted won't come out at trial. They want to be heard, but they don't want to testify. They want the truth to be known, but they can't risk cross-examination. They didn't do this crime, but there are the three same priors lingering in the air.
Add a financial incentive into this mix, where they may not only win acquittal but get their money back, and the influence will skew their unduly optimistic view off the charts. Should defendants choose to go to trial because they have a viable defense and a good chance of winning, or should they go to trial because they can get their money back? How many defendants will suffer the trial tax because money influenced one of the most difficult decisions of their life?
Let me add a few other concerns.
The reason that loser pay works in the European civil system is that it's symmetrical: both sides have the proverbial gun pointed at the other's head. Are we going to start charging defendants for their prosecution if the jury delivers a guilty verdict?
I certainly hope not. (And we wouldn't collect much if we did: most criminals are judgement proof). But that means that the incentives will be skewed rather than balanced. On the one hand, prosecutors may drop good cases against guilty defendants who have done something terrible to another person; on the other, as Greenfield suggests, they may be even more tempted to cut corners. Meanwhile, even guilty defendants will have incentives to run up the bill on long shots: the OJ defense multiplied by 1,000,000.
Which brings me to another point: the budget mechanics of this would be difficult. As with anything we subsidize without limit, the cost of defenses would balloon. We'd have more trials, and more expensive trials. Of course, we don't want peoples' access to justice to be limited by their personal means, so perhaps this is good spending. It would certainly take care of our lawyer glut. But as with anything we subsidize without limit, the next step is going to be price controls; we are not going to allow the decisions of defendants and their lawyers to drive the largest part of our justice budget. The net effect would not necessarily be a better defense--not least because the ballooning budgets would trigger yet another law-and-order backlash against "pro-defendant" courts.
The last thing to note is that this money is not actually going to come out of the prosecutor's pocket, so the incentives will not be aligned all that well. What will happen, instead, is that if she loses too many cases, the prosecutor will get a reprimand, along with an order from above to charge less, or lose less. Personally, I wouldn't weep if we dropped a bunch of non-violent drug cases from the dockets, but I have no confidence that this is what would happen. They might drop the cases that are more difficult to prosecute (or expensive to defend against), like rape.
That doesn't mean that we shouldn't be looking for ways to curb prosecutorial abuse, which I think is a real problem. But while I generally love the elegance of market solutions like this, in this way, I think the fundamental asymmetries will make it less than effective. Let's look for something that aligns the incentives a little more directly--like penalizing prosecutors who abuse their power, or forcing them to make some sort of personal restitution to the innocent people they put in jail.
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