Won’t Someone Please Think of the Rich Guys In Suits?

I was going to write something longer about this Ruth Marcus column, but Atrios largely beat me to the punch here and here. The obvious problem is that her argument relies on prosecutorial discretion, but then retreats into formalism to become selectively blind to factors it is perfectly reasonable for prosecutors to take into account.

If Marcus was arguing that the FIFA or Hastert prosecutions could not be squared with the letter of the law, I’d have no problem with that. Due process really does apply to everyone. If Jeffrey Skilling is convicted under an unconstitutionally vague statute, his conviction should be thrown out.  But that’s not Marcus’s argument. Her argument is that prosecutors should not, in these cases, choose to go after behavior that is in fact illegal under federal law. If that’s the road you’re going down, then it’s entirely reasonable for prosecutors to take particularly bad behavior and consequences into account. The fact that FIFA’s network of bribes and kickbacks produces results like “let’s hold the World Cup in a country where facilities will be built with slave labor, resulting in thousands of deaths” absolutely does matter in this context — if you’re ever going to apply these criminal sanctions, this would seem to be the case. Similarly, using bank reporting laws to indirectly go after a child molester is considerably more defensible than the more typical use of the laws — i.e. indirectly going after people involved in the drug trade. The idea that prosecutors should exercise discretion by declining to pursue particularly egregious offenders is very strange.

Are there too many criminal statutes? Yes. Is mass incarceration a serious problem? Yes. But showing concern for these problems only when rich guys are involved is counterproductive, and it’s even more problematic when said rich guys are guilty of genuinely bad acts with serious material consequences to other people. (This goes triple for Hastert, who bears more direct personal responsibility for the underlying problem than all but a handful of people.) One way to make sure that the problem of mass incarceration will never go away is to apply criminal statutes only to the relatively powerless and not to the powerful. If you don’t think Hastert’s behavior merits an arrest, get rid of the law rather than instructing prosecutors only to use it against less powerful people guilty of behavior that isn’t as bad.