No moral hazard here! Not at all! Carol Chambers (again)

One of the reasons that the Law of Unintended Consequences rears its head time and again is because people in authority often institute new policies or changes in existing policies that contain perverse incentives that entice people to act in a way that is contrary to what the authorities supposedly intended. In economics, we call such situations, "moral hazard."

As I have written before, American prosecutors, both state and federal, generally face no consequences for illegal, immoral, and unethical behavior, and this situation tends to create two effects:

• Prosecutors are more likely to employ a "win at all costs" strategy, including knowingly prosecuting innocent people, because there are rewards for winning, while there are no negative consequences if the prosecutor is caught;

• There will be a "Gresham's Law" effect over time in which the dishonest and unethical prosecutors will "drive out" the honest people, so that prosecutors will tend to be bad or incompetent lawyers who could not make it on the outside, but who enjoy bullying and getting away with wrongdoing.

For all of the ballyhoo about Michael Nifong being disbarred over his nefarious role in the Duke Lacrosse Case, he was a notable exception even though his conduct was not unusual in prosecutorial circles. Nifong's error was giving 70 interviews in which he clearly made up things as he went along, driving the publicity of the case in apparent hopes that the public outrage against the Duke players would be so great that there would be no possibility that any of them could receive a fair trial and, thus, would plead out or be convicted in a kangaroo court trial in Durham, North Carolina, one of the most left-wing cities in the country, and where guilt automatically was assumed because of the racial aspects of the case.

His strategy almost worked, but the North Carolina State Bar intervened during the case, something that almost never happens. Nifong had to remove himself from the case and after North Carolina Attorney General Roy Cooper led a real investigation (as opposed to the dishonest "sham" investigation conducted by Nifong and the Durham Police Department), the charges were dismissed and Cooper declared that the players were "innocent."

In an interview with The Atlantic, Radley Balko pointedly noted that Nifong's fate was an exception and a huge exception to the rule. The usual occurrence, even when prosecutors clearly have lied and engaged in illegal conduct, is for nothing to happen. The Tonya Craft case is proof that dishonesty pays, even when the defendant is acquitted, as none of the wrongdoers faced any punishment, despite the fact that the judge (if we can call brian outhouse a "judge"), the prosecutors, and the police literally conspired to fabricate a document DURING the trial that they hoped would fill a huge hole in the case. That is outright criminal conspiracy, and a representative of the Georgia State Bar told me that she was fine with it, so we can see that the Georgia authorities have no interest at all in reining in criminal behavior on behalf of Georgia prosecutors.

Carol Chambers

This brings me to the latest revelation from the office of Colorado's most unethical prosecutor, Carol Chambers. If ever there were a "win at all costs" prosecutor, it is Chambers, who has set up a bonus schedule in her office that reeks of moral hazard.

The Denver Post reports:

Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.

The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.

Granted, the bonus money is not that much, which tells me that her office is full of people who have spent six figures in pursuit of a law degree but then earn the pay of a manager at a fast-food restaurant. In other words, most of them probably are sub-standard lawyers who are likely to manipulate the system for their own benefit. They win cases not because of their legal talents, but rather because the rules are overwhelmingly stacked in their favor.

While it is true that the conviction rate in Chambers' district is comparable to what it is elsewhere in Colorado, nonetheless the perverse incentives are there and Chambers seems to be encouraging unethical behavior. What else can explain her decision to charge a 10-year-old with felony arson in a situation that openly and clearly did not warrant such charges?

(To find other examples of prosecutorial misconduct from Chambers, this blog has more information. To quote a jury foreman in one of Chambers' cases, this one ending in acquittal:

“In the DA’s office’s agenda to prosecute so overzealously, it seems that the facts of a case aren’t really an objective,” says Chris Cashbaugh, foreman of the jury that cleared Ruth Tsehaye at trial.

There is much more from Chambers' record that demonstrates to me that she is an out-of-control prosecutor, someone who is fundamentally dishonest, but who gives a "law-and-order" front to the conservative Republicans in her district.)

As for paying prosecutors for winning convictions, Chambers creates the worst kind of moral hazard. On the one side, even if her prosecutors are caught lying and breaking the law, they face no penalties because no one will discipline them. On the other side, if they win, they get money.

There is a reason that Radley Balko nominated Chambers for the "Worst Prosecutor of 2010" in his blog. Yet, the real problem is that Chambers never has to pay a price for her dishonesty and abuse of the law and of innocent people.

If authorities in the USA were willing to do their jobs and to enforce the laws of the land as they claim to be doing, this blog would not exist, or it would cover other subjects. Instead, because prosecutors are permitted to be lawbreakers, someone has to speak out, and that is what I am doing.