Prosecutors for sale

Bruce Green in The National Law Journal, October 01, 2012

Media Source

Article written by Professor Bruce Green.

Hundreds of district attorneys across the country routinely sell their letterhead to debt-collection agencies to use in correspondence with debtors who bounce checks. According to The New York Times, the collection agencies mail letters threatening to prosecute the debtors if they do not make good on their bad checks. The local prosecutors whose stationery is used do not review the letters in advance. The prosecutors' offices reportedly receive a percentage of payments collected.

The district attorneys participating in this scheme have committed a gross abuse of power.

Imagine if underfunded courts participated in a similar scheme to raise money for their operations — selling judicial letterhead so that collection agencies could threaten judicial sanctions against individuals alleged to have unpaid debts without the individuals having their day in court and without a disinterested judge making a ruling against them. There would be outrage.

Prosecutors' sale of their authority is no better. The district attorneys' arrangement with debt collectors is improper for five reasons.

First, not everyone who bounces a check is a potential criminal. Most probably are not. Writing a bad check may be a crime if the person writing the check knew she had insufficient funds in her bank account and intended to defraud the vendor. But many people write bad checks innocently. Before threatening to bring charges, a prosecutor must review the evidence and conclude that there would be a fair basis for bringing charges. Otherwise, the threat is baseless and unjustified. But under the prosecutors' arrangement, no prosecutor ever reviews the evidence. Consequently, many recipients of threatening letters will have acted lawfully: They may not have meant to write a bad check, they may have paid what was owed, or they may have stopped the check over a legitimate dispute with the vendor. Threatening to prosecute someone to collect money he or she does not owe would ordinarily be considered extortion. At the very least, it is an abuse of power.

Second, the decision to send a threatening letter must be made by a disinterested prosecutor, not by a self-interested contractor who is unsupervised by the district attorney. Prosecutors are said to be "ministers of justice." In the courtroom, they are advocates, but prosecutors act almost like judges when they exercise power to decide whom to investigate, whom to charge or threaten to charge with a crime, when to offer a lenient deal, and the like. The prosecutors who make decisions such as these are required to exercise independent judgment. Like judges, they must be disinterested. If a company claims it has been defrauded, the district attorney cannot — as a money-saving measure — assign the company's lawyer to prosecute the defendant. Under the district attorneys' deal with the debt collectors, no prosecutor decides whom to threaten, and the collection agency, which makes the decision, is self-interested.

Third, it is an abuse of power for a prosecutor to decide whom to charge, or threaten to charge, in exchange for payment from a private party — even if the party is an alleged victim and even if the money goes into the office's coffers, not the prosecutor's own pocket. District attorneys in this country do not charge every wrongdoer. They are selective. They make distinctions based on many factors, including the seriousness of the wrongdoing. District attorneys might be expected to prosecute every murderer but not everyone who deliberately bounces a check. If some bad check writers are occasionally to be prosecuted or threatened, the decision should be based on legitimate factors such as the amount of the check or whether the debtors are repeat offenders, not on the willingness of a particular creditor or collection agency to help fund the prosecutor's work.

Fourth, prosecutors are supposed to serve public ends. Although prosecutors legitimately should and must take victims' interests into account along with other important interests, prosecutors may not defer entirely to victims — or, as in this case, alleged victims. Thus, prosecutors may not bring charges, or threaten to do so, solely to benefit a private creditor in a civil dispute. District attorneys rarely prosecute people who deliberately write bad checks. This problem is usually left to civil litigation, because most bad check writers, acting under financial stress, do not deserve to be labeled criminals and punished. When prosecutors (whose letters are ghostwritten by collection agencies) threaten debtors, they are either making an idle threat — impermissibly misleading the debtor — or altering their internal charging policies simply to advantage the private collection agencies.

Finally, prosecutors have an equal obligation to police everyone, including debt-collection agencies. Collection agencies may engage in practices that are not just abusive but criminal — for example, defrauding consumers or submitting false information to the courts in civil collection cases. Prosecutors need to be able to investigate and, when appropriate, bring charges against collection agencies that engage in criminal acts. But the district attorneys have a conflict of interest: They cannot objectively oversee collection agencies with whom they partner.

The district attorneys' deal with debt collectors is not just bad public policy. It is professional misconduct. That hundreds of district attorneys nationally have made this deal, evidently convinced that it is acceptable, does not make it so.

Bruce A. Green, the Stein Professor at Fordham University School of Law, teaches and writes on prosecutors' ethics.