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Defanging regulatory bullies

By Thomas M. Sipos
web posted January 31, 2005

Americans should demand the government pay the legal fees -- in advance! -- of innocent citizens or businesses who fight City Hall.

Every day, individuals and businesses are harassed, fined, or suffer civil asset forfeiture by government regulatory agencies such as the IRS, EPA, EEOC, OSHA, FDA, ATF, SEC, Fish & Wildlife, Forest Service, and others too numerous to list. They say "You can't fight City Hall," but that's largely because of City's Hall's deep pockets. Government prosecutors and regulatory agencies enjoy huge warchests, annually replenished with tax dollars, whereas even large businesses must spend their resources wisely. Assessed a fine or hit with a ruling by some bureaucratic busybody, Joe Average, however innocent, often can't afford a courtroom defense. Or he may decide it's cheaper to pay the fine. If he does defend himself, the state may draw out legal proceedings, bankrupting Joe Average into surrender.

In the name of justice, let us level the playing field with mandatory prosecutorial budget-sharing (i.e., require the state to pay for defendants' legal fees in all criminal and civil trials, and in all administrative proceedings). There's even philosophical precedent for this. In 1963, in Gideon v. Wainwright, the Supreme Court ruled that if in a criminal trial an accused cannot afford an attorney, one would be provided by the state free of charge. The Constitution has not been interpreted to extend this right to civil trials or administrative proceedings, but there's no reason we can't do so by statute.

Here's what I propose: Whenever some governmental entity fines, or attempts to expropriate money or other property (as in civil asset forfeiture), or demands compliance to a law or regulation that a defendant feels has been misapplied or misinterpreted, then not only must there first be a jury trial, but the prosecutor shall also be required to estimate his budget at the start of court or administrative proceedings and turn over an equal amount to the defendant to be used for his legal defense in whatever manner he sees fit. If the prosecutor goes over budget, he shall simultaneously pay an equal amount to the defendant. Only if the defendant is found guilty after expending all appeals shall the defendant be required to refund said amounts. This budget-sharing shall be required in all governmental prosecutions and administrative proceedings on an non-discriminatory basis (i.e., irrespective of the defendant's wealth). If the SEC wants to spend $10 million prosecuting Bill Gates, it must fork over $10 million for Mr. Gates's defense. Don't want to? Fine. Then the SEC obviously has a weak case and shouldn't be prosecuting Mr. Gates to begin with.

I hear objections from across the political spectrum.

Won't halving the government's legal enforcement budget eviscerate valuable regulations by discouraging necessary prosecutions? No. It will discourage the government pursuing weak cases because it believes it can scare or bully a defendant of modest means into some kind of "deal." Instead, it will encourage the government to only fine or prosecute defendants against whom it has ample evidence of wrong-doing. Is this not a good thing?

But shouldn't this right be limited only to poor defendants? Not if you believe in "innocent until proven guilty." Why should any innocent person come out poorer though he wins? And yes, a court may grant costs at the end of a trial. But since a man is innocent until proven guilty, why must he wait for the money until he proves his innocence? Especially since he needs the money now for his defense (not all lawyers work on contingency) and the government might draw out proceedings for years on end, "bleeding" a defendant to pressure him into a "deal."

But won't it be expensive to pay for the legal defenses of all these "fat cats"? It doesn't have to be. Firstly, I doubt most defendants are "fat cats." Secondly, as budget-sharing will encourage prosecutors and regulators to target only those against whom they have ample evidence (which they should be doing anyway), they will avoid squandering their enforcement budgets on innocent targets. They will only target defendants likely to be found guilty or liable, and so from whom they can expect a refund of legal fees. Likewise, guilty defendants will be discouraged from taking advantage of budget-sharing, as they must refund such legal fees. (We can even require them to refund it with interest).

See, apart from arming innocent defendants, budget-sharing will also encourage prosecutorial good conduct. A good thing, no?

What if a defendant is found guilty, but has no money to refund? Better to lose money on a hundred guilty men, than force one innocent man to pay a fine or lose a regulatory battle merely because he could not pay for his defense.

I prefer we instead abolish civil asset forfeiture, and most taxes and government regulations. All well and good, but those are difficult and distant goals. Until then, let's level the playing field so citizens can defend the rights they still possess. Think of prosecutorial budget-sharing as an interim goal toward still greater freedom. There's no reason you can't work toward both goals.

But I don't want to pay for someone else's defense. Neither do I. But still less do I want the government to cherry pick and bully easy targets. The government already takes our money to enforce its regulations; let's at least require it to use some of that money for our defense. By increasing everyone's legal defense against the state, you increase everyone's liberty.

Here's my plan. The California Libertarian Party's platform committee (to which I've been elected) meets at the CLP convention in February. I plan to suggest a platform plank that will advocate legislation to mandate prosecutorial budget-sharing by state agencies in California. If this plank is adopted and proves popular, it might be adopted by other state LPs, and by the national LP at its 2006 convention.

I also need the help of readers. I don't claim to be an expert on this issue; it's just an idea I had. So please email me with suggestions on how such a plank should be worded, to make sure all bases and loopholes are covered. The plank should go under the current platform's Judicial section.

Meanwhile, there's no reason that liberty-lovers in other parties, or in no party, cannot lobby their legislators to mandate prosecutorial budget-sharing, so as to level the playing field against City Hall.

Thomas M. Sipos is a California based author. He can be reached at tsipos@communistvampires.com.


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