I’ve been blogging over the years quite a bit about a problem I call “criminalizing agency costs,” which is a piece of the general problem of over-criminalization. In fact, this problem was a big reason for my getting started in blogging almost seven years ago.
As I mentioned a couple of months ago, I presented a paper on this at George Mason’s “Over-criminalization 2.0” conference. Now the paper’s on SSRN: Agents Prosecuting Agents. Here’s the abstract:
Significant questions have been raised concerning the efficiency of criminalizing agency costs and the problems of excessive prosecution of crimes committed by corporate agents. This paper provides a new perspective on these questions by analyzing them from the perspective of agency cost theory. It shows that there are close analogies between the agency costs associated with prosecutors in corporate crime cases and those of the agents being prosecuted. The important difference between the two contexts is that prosecutors are not subject to many of the standard mechanisms for dealing with corporate agency costs. An implication of this analysis is that society must decide if prosecuting corporate agents is worth incurring the agency costs of prosecutors.
It’s a simple concept: If agency costs are a big enough deal to criminalize, we should worry about the agency costs on the prosecutors’ side as well.
Read it while it’s hot.
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After reading the title and teaser, but before the abstract, I expected another conclusion: we should impose criminal liability on prosecutors and police for bad prosecutions and arrests.
Maybe we do now, formally, but I know there’s some kind of powerful immunity from civil suits. Prosecutorial misconduct can’t give rise to any suit at all, and police misconduct only to S1983 suits against their employers– something like that.
What we need, perhaps, is for the government to waive sovereign immunity and let itself be liable to same extent, but only the same extent, as private actors. Then, a rascally prosecutor like the ones in the Senator Stevens case, say, who concealed evidence in violation of the law would be put up for criminal trial and would be sued for zillions by the victim (personally, since the action was contrary to the employers’ stated— and one hopes, actual, policies, tho this last is a question of fact). And, in fact, if the Justice Dept prosecutors weren’t fired, the victim could sue the Justice Dept too, on vicarious liability, since that would be a sign that the Justice Dept. implicitly authorized such misconduct.
Similar analysis could be applied to the Duke lacrosse team prosecutor.
Eric —
I sympathize, but the article discusses this option and shows why it’s unlikely.
You are making me feel very inadequate right now…