DEFANGING REGULATORY BULLIES
by Thomas M. Sipos, managing editor.
[January 25, 2005]
[Hollywood Investigator.com] Americans should demand the government pay the legal fees -- in advance! -- of
innocent citizens or businesses who fight City Hall.
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.
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
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.
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
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
objections from across the political spectrum.
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?
shouldn't this right be limited only to poor defendants?
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."
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 but weak 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).
from arming innocent defendants, budget-sharing will also encourage prosecutorial
good conduct. A good thing, no?
if a defendant is found guilty, but has no money to refund?
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
prefer we instead abolish civil asset forfeiture, and most taxes and government
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.
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
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
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
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.
Copyright © 2005 by Thomas M.
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