Collateral Prosecutions Pt. II

I wanted to say a few more words about what I'm calling "collateral prosecutions," where individuals are charged for crimes either committed as a result of or simply uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own.

I wanted to discuss the prosecutor's side. When those prosecuting Martha Stewart (or Bill Clinton, or whomever) realize that they either cannot bring charges or win a conviction for the root crime, what should their next course of action be? Should they ignore the collateral crime? Should they prosecute for it?

My intuition suggests that it might depend on whether or not the prosecutor is still convinced that the individual really did commit the root crime, but that it simply cannot be proven beyond a reasonable doubt. I'm sure it is often the case that prosecutors continue to believe the individual is guilty of higher crimes, even if they cannot prosecute him for them. As such, they feel fully justified in sending him to jail for whatever they've got him on. And in some cases, this is pretty clearly the right result. An easy example would be Al Capone. Did anyone consider it unjust that he go to prison for tax evasion, even assuming that were a crime that would not have been investigated or prosectuted on its own? I think not, and I think this is a result of our widespread, firm belief that he was in fact guilty of many other crimes, and thus deserved to be punished.

I also think this is more true where, like in Hypothetical B below, there is a greater nexus between the root crime and the collateral crime. Perhaps the prosecution just feels less arbitrary, perhaps the collateral criminal behavior seems less excusable.

Anyhow, I suspect this explanation does much (most?) of the work in explaining prosecutorial behavior in these cases, and why we often see lesser collateral charges brought even though other intuitions suggest such prosecution seems petty or vengeful.

But let us assume for a moment that the prosecutor himself is now convinced of the individual's innocence of the root crime, though certain that they are guilty of the collateral crime. What then? Many would see any collateral prosecution as a product of simple vindictiveness, or bruised prosecutorial egos. But I still think there are good explanations for why a prosecutor would bring the case.

Most basic is the fact that they are duty-bound to pursue law violators and see them punished. Of course this is nearly begging the question, since built into a prosecutor's position is a great deal of discretion about where and when to bring charges.

One factor favoring prosecution would be public and political pressure. Though the individual would never have been investigated just for the crimes he is actually being charged with, in this case he was investigated because of now-disproven suspicion regarding the root crime. The evidence of the collateral crime was gathered, and illegalities have been shown. With so much attention, both from the media and from superiors, it might be very difficult for prosecutors to simply overlook crimes of which they have clear and convincing evidence. That sort of discretion goes on every day, I'm sure. But not under the spotlight that some of these cases bring. As such, perhaps the discretion of the prosecutors is severely narrowed, or at least they feel it was, and as such saw no other choice but to charge for the crimes they think it clear they can prove were committed.

After all, every cry of "prosecutorial overreach" can be quickly turned into a cry that "rich defendants always get off." The defendant that is martyr to some is often anathema to just as many. There is also, of course, pressure to get results at the end of a long and expensive investigation. Though that would not be a particularly satisfying explanation, it is still much more sympathetic than the portrayal of prosecutors as bloodthirsty and vengeful. And that's the idea I'm getting at generally with this post. I tend to dislike the stereotyped caricatures that we assign to various public actors, and wanted to dig a little deeper into potential explanations for what is often characterized as unpleasant and unjustified behavior.