The Price of Prosecuting Bonds

Neyer linked my bit about the feds raiding Greg Anderson’s mother-in-law’s house over in his Friday Filberts today, and he asks a good question:

But on the other hand — and I should probably defer to Craig on these things, because he’s got a law degree and I don’t — perhaps a high-profile prosecution of a public figure for lying to a grand jury is in the public’s interest. Even if it can’t be quantified in any meaningful way.

There are three primary reasons to prosecute someone for a crime: (1) to punish someone for violating a law; (2) to incapacitate that person via incarceration or execution from committing further crimes; or (3) to deter others from violating the same law. Actually, there shouldn’t be an “or” in there, because these aren’t mutually-exclusive categories. Indeed, most criminal prosecutions aim to do all three of these things to greater or lesser degrees, though certainly not always.

Punishment is certainly applicable in the case of Barry Bonds. We want to punish those who lie to grand juries because their actions have interfered with the orderly administration of justice. That said, this is not a capital crime we’re talking about here. Perjury is not an epidemic in this country and it doesn’t pose a serious risk to public safety or anything. Bonds may do some time if he’s convicted, but he won’t be spending his dotage in federal prison for it, nor should we expect him to.

Incapacitation isn’t really relevant here. Sure, Bonds won’t be out on the streets lying to grand juries if he goes to prison, but unless Bonds has a lot more going on in his life than we all know, the risk that he would have anyway is small.

Rob has hit on reason number three: deterrence. We can’t have an effective criminal justice system if people lie to grand juries, so it makes perfect sense to prosecute some people for perjury — even if we don’t go after everyone — so that others who may have to testify know that it is serious business. This was the primary purpose behind the Martha Stewart prosecution, and, depending on how much animus you feel Jeff Novitsky has for Barry Bonds, it is the primary purpose for this case too. And no it is not illegitimate on its face to single out high profile people for the simple reason that they provide the basis for stronger deterrents given that their prosecutions will be widely reported. But again, this snakes back into punishment, and we must accept that there is some limit to the lengths we’d go to deter this particular crime. Yes, executing someone for perjury would certainly send a message — indeed, it would probably eliminate the problem in its entirety! — but that’s not how Anglo-American jurisprudence rolls.

So if we add that together, we have a mild to moderate punishment incentive, a zero incapacitation incentive, and I’d say a moderate deterrence incentive at work. It follows then, that the prosecutorial effort expended to achieve those goals should be commensurate with the value achieving those goals brings to society.

I submit that the effort expended to get Bonds has far exceeded the public good even a successful prosecution will bring. Tens of millions of dollars have been spent on this case. Potential witnesses — not co-defendants, mind you, but mere witnesses — have done time in jail and are having the IRS’s nose rammed up their posterior. Overkill left the station months ago. We’re now into megakill.

So no, I’m not theoretically opposed to prosecuting Barry Bonds for lying to a grand jury. I am, however, opposed to the force which has been brought to bear to accomplish it.