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. [ http://www.ca.lp.org/convention/2005/
]. 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 [
http://www.ca.lp.org/platform/2004LPCPlatform.html#jud ]

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. His email is:
tsipos@communistvampires.com. His website:
http://www.CommunistVampires.com.

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