Why No Accountability? Part II

In my last post, I pointed out why certain jobs seem to self-select bullies and rogues like Len Gregor and Tim Deal. (From what I understand, Gregor's father went to West Point, where there allegedly exists an honor code, but it looks as though the son does not have the same view of honor.)

Yet, why do the Len Gregors go into the prosecution profession at all? I mean, why is it that a fundamentally dishonest person like Gregor -- and mark my words, to use his own phrase against Tonya Craft, if his lips are moving, the guy is lying -- can become a prosecutor with all of its power and responsibility to do wrong? Why would anyone hire him, given that the courts are supposed to be places where truth is sought?

(Yeah, I know, we have to pick ourselves off the floor after that one. The LMJC's claim to "Wisdom, Justice, and Moderation" is a joke, a very sick joke. Nonetheless, the question remains as to why no one in that system is accountable to anyone, even when its members literally commit felonies, as did Gregor and his buddy in crime, Chris "Facebook" Arnt, not to mention tag team member, "judge" Brian Outhouse.)

The first reason there is no accountability is simple: these systems are run by fallible human beings, who tend to be rather sinful characters. But simply to blame this on the badness of human nature is to punt. After all, lots of human institutions, like the various military academies and other education institutions have honor codes that actually are obeyed. Furthermore, there are people in the court systems here and there who do demonstrate integrity, so it is not impossible to find people willing to do what is right.

However, we see time and again how the players in the system are protected. When I spoke to someone at the Georgia State Bar last summer about the conduct of Arnt and Gregor, she replied, "Well, they were just doing their jobs." I replied, "Do you mean to tell me that the Georgia State Bar considers subornation of perjury, bringing false charges, and lying openly to jurors to be 'their jobs'?" She hung up on me.

Obviously, the Georgia State Bar clearly approves of the worst of prosecutorial misconduct, and Georgia hardly is alone in openly encouraging this behavior. Prosecutors throughout this country time and again are exposed as liars and criminals, yet they have legal immunity and the state bars refuse to discipline them.

The question, obviously, is "Why?" From what I can tell, this is what happens in any kind of state-run monopoly in which the so-called economic rents are "captured" by employees. Let me give an example.

In 1969, NASA sent astronauts to the moon using computer systems that when compared with what exists today, were something out of the Stone Age. Today, it is doubtful that NASA could repeat that accomplishment, as the program has run out of steam and the equipment used with the Space Shuttle Program (which, thank goodness, finally is deep-sixed) looks like something out of "That 70s Show."

What happened? In 1969, NASA was only 11 years old, and its scientists and administrators had not learned to be petty careerist bureaucrats. They had a "can do" attitude and had real talent that was permitted to shine.

More than 40 years later, however, NASA is full of people who cannot wait to retire so that they can get on a pension, take another government job, and retire again with a double-dip pension. The whole thing is about hanging around, getting paid, and getting the pension.

Likewise, the prosecutorial and judicial offices are full of careerists. When Mike Nifong sought election as prosecutor of Durham County in 2006 (he had been appointed to that position a year before), he was trying to get four more years of service and a pension increase of $15,000 a year. He succeeded in being elected, but only because he had obtained bogus indictments of three Duke lacrosse players who had been falsely accused of raping a local prostitute/stripper.

Nifong paid dearly for his indiscretions, being disbarred in 2007 after the case fell apart. At the time, people were saying that the action taken against this lying rogue was "extraordinary," something I could not understand. After all, I reasoned, Nifong had lied and created huge swaths of damage, all to get an extra $15 grand a year. "Why shouldn't he be seriously punished?" I asked.

Well, it turns out that for all of his crimes, Nifong received a slap on the wrist relative to what others who lie and perjure themselves, yet the very fact that a prosecutor was punished at all was considered to be extraordinary. Why the discrepancy?

As I noted earlier, what we have in the courts in this country can be explained by a form of what economists call "Capture Theory." The standard "Capture Theory of Regulation" states that regulatory agencies over time will be "captured" by the businesses and industries that they regulate. The lines between the regulator and the regulated become blurred, especially when these industries offer the "revolving door" between positions of regulation and positions within the firms being regulated.

For example, former Vice-President Dick Cheney before being elected in 2000 was the CEO of Haliburton. Now, before coming to Haliburton, he had little or no experience running a private firm, but that was of little consequence. After all, Cheney had been U.S. Secretary of Defense and Haliburton is a huge defense contractor. The symbiotic relationship between the DOD and its contractors meant that Cheney could easily move into leadership into that firm, making a heck of a lot more money than he ever made at DOD or as a member of Congress from Wyoming.

The "Capture Theory" of the courts is similar, but also different. For one, courts are government entities, and while one might want to argue that the actual "criminals" that are "regulated" by the courts end up "capturing" the entire apparatus, that is not what I mean. (Although, I must admit the idea is plausible, if the LMJC is an example.)

No, the employees of the courts themselves capture the "regulatory apparatus," or the "oversight" entities. The courts already have conferred immunity upon themselves, making it almost impossible for private citizens to be able to bring charges against judges and prosecutors, and we should not be surprised that judges have used the law to protect their own.

That leaves only the state bars, and it is abundantly clear that prosecutors have "captured" that apparatus as well. No, the bar staffs are not filled with ex-prosecutors, but these people have managed to influence those above them and to ensure that they are highly unlikely to face any discipline, no matter how egregious their conduct.

I have not seen this version of "Capture Theory" in any of the literature, economic or legal. Last year, I published a piece on courts and hoaxes in the Cumberland Law Journal in which I noted that the rewards, or what economists call the "economic rents" within the courts tend to be captured by people within that system.

To use Nifong again, he was able to corruptly and dishonestly use the grand jury process in order to gain indictments that would please the local leftists and African-Americans (that make up the bulk of the political power in Durham County, North Carolina). In short, Nifong (albeit briefly) "captured" the "economic rents" that such a case afforded him.

For prosecutors, they are judged by the numbers. The more convictions, the more rewards they receive, monetary and otherwise. Such a set of incentives in something like prosecuting crimes is going to come up against the moral hazard of pursuing cases that are high-profile, but low in evidence (or maybe even the evidence is non-existent) because maybe, just maybe, the prosecutor can get a conviction.

The false "child molestation" cases brought by Janet Reno in Florida ultimately catapulted her to the office of U.S. Attorney General. That her office lied, destroyed evidence, and manipulated young children had no effect whatsoever on her becoming Bill Clinton's AG. There was no one to discipline Reno, and within a month of taking office, she ordered a raid that turned into the biggest government massacre of innocents since Wounded Knee in 1890. (Her popularity rose after her goon squad immolated children, elderly people, and pregnant mothers. Americans figured that they must have deserved their fate.)

So, as long as the current set of incentives remains in place, and as long as prosecutors and judges are able to "capture" the apparatus that supposedly regulates them, we will see the Len Gregors of the prosecutorial world run wild. Will it ever change? I don't think so, or at least not in the USA.