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April 2013

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Shocking New Study: Lack of Legal Accountability Breeds Corruption

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Not that I intend to demean the folks who conducted this study, as there is utility in confirming with evidence things that seem obvious or intuitive, but I can’t help but laugh at the headline, “Corruption soars when politicians are placed above the law, study finds:”

In a new study, Stern School of Business assistant professor of economics Vasiliki Skreta and co-authors, Karthik Reddy of Harvard Law School and Moritz Schularick of the University of Bonn, examine statutory immunity provisions that obstruct or limit the criminal liability of politicians, and which exist throughout much of the modern democratic world.

…The researchers quantified the strength of immunity protection in 74 democracies and verified that immunity is strongly associated with corruption on an aggregate level. They also developed a theoretical model that demonstrated how stronger immunity protection can lead to higher corruption. The model suggested that unaccountable politicians under immunity protection can enhance their chance of re-election by using illegal means, namely supporting interest groups through lax law enforcement, non-collection of taxes, and other forms of favoritism that will go unpunished.

Certainly how a system constrains those in power is an important and worthy area of study in the social sciences. Most, however, probably already accept that politicians should not be above the law. In that sense the study may have limited impact. However, if we generalize its findings a bit and begin to question the accountability of other government officials, it could theoretically have broader implications.

Consider prosecutors, who were once described by Supreme Court Justice Robert Jackson as having “more control over life, liberty and reputation than any other person in America.” Their charging power, he said, is an “immense power to strike at citizens, not with mere individual strength, but with all the force of government itself.” And yet, they have absolute immunity, which renders them impervious to any legal repercussions for such decisions. Making matters worse is that the Supreme Court has given them a slightly less comprehensive standard of qualified immunity in situations where they actually investigate evidence. In other words, prosecutors are given a comparative disincentive from investigating the strength of the evidence they will use to try and convict someone, and then given complete immunity for how those decisions turn out.

Sadly, as Radley Balko reports, “prosecutors are rarely disciplined even for serious misconduct.” For every Mike Nifong of Duke Lacrosse fame who actually gets disciplined, there are orders of magnitude more who get off scot-free. They are held to essentially no legal standard at all. It is a system ripe for corruption, and corruption is precisely what frequently occurs.