21 January 2013
Reginald Wormwood, Esq.
Wormwood Consulting, Inc.
1000 N. Michigan Ave.
Chicago, IL 60611
My dear Wormwood,
I must congratulate you on your immense success. To speak
frankly, you were something of a disappointment when you fixed your
attentions upon a single patient. You always seemed to me a little
naïve in underestimating the Enemy’s strength and too often
couldn’t close the deal. Now that you’ve moved into politics,
however, you’ve performed splendidly. You’ve gone from retail to
wholesale (if I might permit myself a little levity), and it’s
clear that this is where your talents lie.
In the past you’ve encountered difficulties in persuading your
patients to come over to our side. You might’ve told them that
abortion is a good career move, but some nasty little scruple
always held them back. Now, however, when you wrap your arguments
in high politics and abstract rights, you get so much further. By
the way, I thought that having that 14-year-old plead for an
abortion when she was a little older was a masterstroke (note: next
time, why ask her to wait?).
I write this not to congratulate you, however, so much as to
warn you against resting on your laurels. You might think that
things could not be better for us, but as long as the Enemy still
wins a trick or two, we can always do better.
At the level of politics, where so much good can be done, I
invite you to think how pockets of stubborn resistance might be
eliminated. Specifically, think what a wonderful opportunity is
presented by the American criminal justice system. America is home
to just 5 percent of the world’s population, but nearly 25 percent
of its prisoners—2.3 million in total. An additional 5 million
people are on parole or probation. This means about 2 percent of
American adults are considered criminals. That figure—higher than
any other country—should be a matter of immense pride for all of
us.
It’s not just the absolute numbers. There’s also the
incomprehensibility of the criminal law and the number of criminal
offenses. No one knows just how many federal offenses there are,
and we are moving closer to the happy state where every American is
a potential felon. Remember what our good friend Lavrentiy Beria
once said? “Show me the man, and I’ll show you the crime.” That’s
where we are today.
(Before I forget, I thought that your moving to Chicago was
brilliant. I mean, where else?)
In the past, when lawyers sadly paid more attention to the
Enemy, crimes required a guilty mind—what the lawyer calls mens
rea. The mens rea requirement was imported into the
common law by the despicable canonists, who argued that criminal
wrongdoing, like “sin,” assumed moral guilt. Thankfully, we’ve put
those antiquated notions behind us with the aptly named “public
welfare crimes,” which dispense with the reactionary idea of
culpability.
We have progressives to thank for this (along with so much
else). Now think what an opportunity it gives us! You’ll recall
that Chekhov (a most unsatisfactory atheist) said that, when the
audience sees a loaded pistol on the wall in Act I, it must go off
by Act III. Misuse of criminal law is a loaded pistol, and you
might explore opportunities to help pull the trigger. We’ve
succeeded in other countries, such as Russia, where Mikhail
Khodorkovsky was sentenced to 14 years in prison in a series of
show trials, ostensibly for fraud but in reality for having the
temerity to oppose Vladimir Putin.
Without any great difficulty, you might enlist ambitious
prosecutors, who have enormous discretion and may generally
overreach with impunity. In federal grand juries, which operate in
secret and can go on for years, prosecutors are virtually immune
from judicial supervision. They can call witnesses (including the
target of the investigation) without revealing the nature of the
case, and can introduce hearsay evidence. Not surprisingly, they
seldom fail to win indictments. Since an indictment inflicts
enormous reputational losses, the mere threat of grand jury
proceedings is often enough to bring people to their knees.
The Department of Justice increasingly takes advantage of its
leverage to obtain convictions of company executives. Under the
“Holder memorandum” (named after Eric Holder), the Department of
Justice encourages prosecutors to base their prosecutorial
decisions on the degree to which the target firm cooperates with
the investigation. This includes hanging the company’s executives
out to dry by inducing their employers to breach their contractual
duties to pay for their employees’ legal fees.
Prosecutors are also advantaged by their ability to bring
multiple charges, under multiple theories of criminal liability.
The prosecutor need win a conviction on only one count, while the
defense must win them all. A jury, minded to split the difference,
might easily acquit on 99 counts and convict on one. For sentencing
purposes, however, there is generally no difference between a
conviction on one count or many.
When federal prosecutors bring a case, they also have all the
financial and investigative resources of the Department of Justice
at their disposal. They can buy favorable testimony by selectively
granting witnesses immunity from prosecution, or by threatening to
deny such immunity. They can coerce a guilty plea to a lesser
charge by threatening to indict on a more serious one. The
inequality in bargaining power is magnified by the “trial penalty,”
the harsher sentences courts impose on defendants who refuse to
plead, go to trial, and are convicted. As a consequence, nearly
everyone caught in the meshes of the federal criminal system pleads
guilty. Some calculate that federal prosecutors secure guilty pleas
from about 96 percent of defendants and win convictions at trial
against about 3 percent. Only one-half of 1 percent are
acquitted.
On taking office, an incoming president might replace all
incumbent U.S. Attorneys, as was done without comment in 1993. The
appointments require Senate confirmation, and individual senators
have by tradition had a strong say in who will serve, but it cannot
be beyond the wit of a president to place several of our friends in
office, and then let nature take its course.
One saw a hint of what this might mean in the 2012 election
campaign, when an Obama campaign manager suggested that the
Republican nominee had committed a felony under federal securities
law. “Either Mitt Romney, through his own words and his own
signature, was misrepresenting his position at Bain to the SEC,
which is a felony,” she said, “or he was misrepresenting his
position at Bain to the American people to avoid responsibility for
some of the consequences of his investments.” The charge went
nowhere, except as one more element in a happily effective
campaign. What was remarkable, however, was that no one much noted
that the campaign had ascended into Khodorkovsky territory.
That’s not to say that presidents will throw opposition leaders
into jail, as they do in Ukraine. However, it is not beyond the
realm of possibility that right-wing press lords, investigative
magazines, and major opposition donors will find themselves under
criminal investigation. Or that IRS tax audits and Labor Department
investigations will be shaped by political considerations—if only
because all that seems to happen now.
Perhaps Act III is not so far away after all.
Your affectionate uncle,
Ebenezer Screwtape
P.S. I liked you better with the mustache.
