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.

The Ordeal of Michael Rasmussen, Part III: Is It Torture, or Just Prudence?

When Americans think of prison, they think of it as a place where people are punished AFTER having been convicted either at a trial or after a guilty plea. The notion of someone being imprisoned and facing real prison conditions before a trial, and especially when there is serious question about someone's guilt seems, well, "un-American."

I hate to say it, but today, "un-American" means applying the standards of justice that are provided by the U.S. Constitution and our legal inheritance from the Rights of Englishmen that our colonial forebears gave us. Today, prosecutors and police have no obligation to follow the law, as the courts pretty much have told them that the law is whatever they want it to be.

My previous post -- including Kerwyn's comments -- lays out just a few real problems in the prosecution's case. In fact, the prosecution is so unsure that it even is presenting a truthful case that it has resorted to the "three bites of the apple" approach: continue to put Mr. Rasmussen on trial until he no longer can afford any defense counsel and is given a public defender, who then works hand-in-glove with his bosses (prosecutors, as in reality, public defenders might as well be employed by the prosecution) either to plead out his client or to present such an awful defense at trial that leads to a conviction.

As I see it, "three bites of the apple" is dishonest to the core and represents the worst that the state gives us in the administration of "justice." But it does not stop there.

Right now, Mr. Rasmussen is being held in solitary confinement at the Charles County jail. This is being done supposedly to "protect" him from other inmates, as "child molesters" always get "the treatment" from the regular prison body. (Keep in mind that "the treatment" is not possible unless the authorities work hand-in-glove with the inmates to make sure that a rape -- or worse -- occurs. The notion that jail or prison authorities are seeking to protect anyone but themselves is a very, very sick joke.)

So, Mr. Rasmussen is kept in his cell almost the entire day with no contact from anyone else. At last report, he had been in the same set of clothes for nearly a week with no opportunity to change.

Solitary confinement, or putting prisoners in "the hole," is a form of punishment, not protection. Charles County authorities know that their case is weak, that Det. Selkirk and Det. Austin have presented material that is questionable at the least and utterly dishonest at worst. They are aware of the huge discrepancies in the evidence, and much more (as Kerwyn and I will be presenting over the next several days).

So, as I see it, they are trying a new tactic: break the accused through a form of torture. Strip him of everything, give him a sense that there is no hope no matter how much he tells the truth, cut him off from everyone and everything, and then watch him utterly deteriorate.

This is reprehensible, but this is what is done in this country. It is ironic to hear Hillary Clinton lecturing others about freedom of speech and torture and all that, yet members of her own political party (Charles County is controlled by the Democratic Party) pretty much act as though they are Third World dictators.

(I will add that Republicans are not better, and that their "law-and-order" mantra is partly responsible for the deterioration of U.S. law. It seems that no Republican can run for office without declaring that he or she is "tough on crime," which really means that they are tough on the Constitution and the Rule of Law.)

The Charles County strategy is pretty obvious: break the prisoner. There is no case, the man is innocent, but the authorities want to win and they will win at all costs.

Because of the state of U.S. law today, torture is applied regularly by both people wearing the badges of Republican and Democrat. It is not a partisan thing; rather, it is what happens when justice becomes utterly politicized, and when those who are in charge of administering justice are not held accountable for their actions.

Carol Chambers, Once Again

One of the worst prosecutors in the country, Carol Chambers of Colorado, seems hell-bent on challenging Christopher Arnt as the worst and most dishonest prosecutor in the country. Her latest caper is to charge two boys (now 11) with felony arson for a fire they accidentally set last year.

Bill Johnson of the Denver Post puts this into much-needed perspective. (Thanks to Kerwyn for finding this one.)

I'm speaking today to the Panhandle Economics Club in Pensacola, Florida. I'll be back home early tomorrow morning.