Wednesday, February 18, 2009

When Pretexts Make Sense

In my findlaw column today, I discuss the recent guilty plea by Miguel Tejada (for lying to Congressional staffers about the use of steroids in baseball), and I argue that such pretextual prosecutions (for lying about misconduct rather than for the misconduct itself) demonstrate governmental hypocrisy and diminish public respect for legal institutions. In this post, I want to provide an important caveat to the message of the column: pretextual governmental activity is sometimes appropriate and necessary.

Pretextual conduct is behavior that is motivated by a different set of concerns than those cited by the actor regarding his own conduct. If you are angry with your sister for winning a chess game against you, for example, you might insult and yell at her for forgetting to lock the door, even though you actually don't much care about the practice of door-locking.

The sort of pretextual governmental activity I would condemn targets relatively insignificant conduct whose criminal status is itself questionable (such as, for example, the use of steroids). If the underlying targeted activity may not even merit criminal prosecution, it seems especially inappropriate to send investigators to ask the target questions about that activity and then use his predictably false answers as a foundation for building a prosecution for "lying."

In other cases, however, the underlying offense is far more serious, while it remains difficult or impossible -- for a variety of reasons -- to prosecute directly for that offense. When a person cannot be prosecuted directly for committing rape, for example, because the statute of limitations for the offense has run, it would seem (to me) acceptable to find some independent basis for prosecuting him (tax evasion, for example). In such a case (which resembles those brought against past organized crime figures such as Al Capone), the injustice of impunity -- of allowing a person to get away with his vicious and violent acts -- may be legitimately balanced against the harms of pretext ( which include charges of hypocrisy, the opportunity for the discriminatory exercise of discretion, and the risk that one is in fact wrong about the truth of the underlying claim).

We sometimes say, in defending the strong presumption of innocence in a criminal case, that it is better for ten (or a hundred or more) guilty men (or women) to get away with their crimes than for one innocent person to suffer wrongful conviction. While true enough, however, it is worth remembering nonetheless that it is a bad thing when ten (or more) guilty people get away with inflicting criminal harm onto others. In the interest of avoiding a particular instance of such an outcome, a pretextual prosecution can sometimes be a positive good.

Posted by Sherry F. Colb