Unfortunately, this happened on twitter, so that readers weren't aware of his questions, and there was no ability to explain with any degree of depth. As fun and easy as twitter may be, it's not a good medium for thoughtful discussion. For this reason, I refuse to start something on twitter that's either doomed to fail or merely incapable of doing any more than scratching the surface.
But if Radley questions why this proffered fix shouldn't be given a try, I assume others do as well, and it's worthy of a real response. In Glenn Reynolds' 6-page opus, he explains this fix:
Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-indigent defendants bear the cost – is an integral part of the criminal justice process. For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.
What a great idea, for guys who do what I do at least. The reluctance criminal defendants now have in putting their own money up for their defense, applying whatever cost-benefit analysis naturally happens in their heads, would certainly get a boost from the prospect of getting the money back on the other side.
After all, there are two things that are almost invariably present at the beginning of a criminal defense: The defendant believes he's innocent, regardless of how guilty he may be, or the defendant believes the prosecution can't really prove his guilty. The ubiquitous question, "do they have it on videotape? Huh? Huh?" said to convince us that there is no way the defendant can lose because there is no way the government can prove their guilt. Except the prisons are filled with people whose guilt couldn't possibly be prove to the defendants way of thinking. How could that possibly be?
The problem is that defendant often begin their defense in a delusional state of absurd denial, grasping onto odd straws that they, their spouses, their great aunt in Selma, the guy on the corner, assert with absolute certainty will result in their freedom. And this is before they find religion.
Introducing a financial incentive to secure a conviction to the already overwhelming incentives that drive cops to coerce confessions and nudge identifications, and prosecutors to bury the Brady and provide excessive coaching to their victims, is just fuel to the fire. If the defendant would recover his legal fees (and how much was recoverable according to a judge's vision of reasonable fees is another issue, but one that will never need to be addressed), the money would have to come from somewhere, some budget. Whose? Which bureaucracy would be willing to take the hit? Which piece of the prosecution side would be strong enough, honest enough, reliable enough, to ignore the potentially ruinous financial consequences and maintain fealty to the rules and Constitution?
And why, if the group's devotion to justice is so strong, can't they be trusted now, without the additional burden of a financial incentive?
Then we have the judiciary, which costs money to run as well. The judges don't hold bake sales, but depend on the legislature to fund their operations. If the decisions of the judges end up busting budgets, even a little bit, the power of the purse will come to bear. It may be subtle. It may be blatant. But it most assuredly will be, as politicians are disinclined to suffer the anger of their constituents when they have to raise taxes to cover gaps that judges could close. While we may not have much judicial independence now, there will certainly be less when there is money involved.
And finally, we come to the beneficiaries of the concept, the defendants. Already, defendants are faced with unbearable choices, to plead or fight. The equation is now a difficult balancing act of risk of conviction and severity of sentence. The discussion is brutal, as few defendants have any appreciation of the weight or nature of evidence, or why all their really good reasons why they shouldn't be convicted won't come out at trial. They want to be heard, but they don't want to testify. They want the truth to be known, but they can't risk cross-examination. They didn't do this crime, but there are the three same priors lingering in the air.
Add a financial incentive into this mix, where they may not only win acquittal but get their money back, and the influence will skew their unduly optimistic view off the charts. Should defendants choose to go to trial because they have a viable defense and a good chance of winning, or should they go to trial because they can get their money back? How many defendants will suffer the trial tax because money influenced one of the most difficult decisions of their life?
And these are the reasons why this idea, seemingly "just" on its surface, would prove problematic, if not disastrous, in real life. And this is why the response wasn't suitable for a twit.
As long as we're at it, Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn. Anyone?
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