There has been an interesting comment thread following Friday afternoon's post on the Rindfleisch and Wink indictments.
I agree generally with Ed Fallone's comments on prosecutotial discretion but "generally" is the operative word. This is not garden variety white collar crime. They are offenses arising from political activity charged against the partisans of one side by a partisan of another. There is no way to avoid that but I think it suggests few cautionary points.
First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior. Even if these laws are not intentionally abused, there is the potential for uneven application, disproportionate consequences and the use of criminal law as a political weapon - if not by the prosecutor, then by complainants and commentators.
This concern is not as salient as it might otherwise be here because, at least so far, the charges involve conduct - fundraising on government property - that is clearly prohibited. (There may be a legal question regarding the DA's ability to charge a felony for such conduct. But that's a separate post.)In this regard, it is interesting to note that no charges have been filed with respect to the conduct that supposedly prompted the investigation - comments posted to the Journal Sentinel website by Darlene Wink. The DA deserves credit for not charging that.
Second, even if there are not notice and vagueness problems, we still have concerns about disproportionate consequences and uneven application. Let's take the former first. As Ed points out, the offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong). (Someone might argue that it is malum in se to deprive taxpayers of a full day of work, but that is not an element of the offense that has been charged and it is unclear whether that happened.)
Ed is right that people get punished for crimes that are mala prohibitum, but we can't stop there. Offenses that are wrong only because prohibited generally are punished less severely than those that are wrong in and of themselves.
There are at least two reasons for that. The first is that the offender is less morally culpable. As Jay Heck points out, Rindfleisch and Wink may have been arrogant and stupid but they have not have not committed a horrendous crime. Don't believe me? Consider this.
Both women were absolutely free to raise funds for political candidates. Had both picked up their laptops and walked over to the Public Library or the coffee shop at the Hilton, they wouldn't be in trouble today. (They might also have to do so "outside established work hours" if they had established work hours. I'd be astonished, though, if we started to prosecute politicians and political appointees for leaving work to attend to fundraising.)
Of course, they didn't leave the building and now they have to pay a price for that. But the notion that the failure to do so should draw felony charges and prison time does not track for me. I felt the same way about Chvala, Burke, Foti and Jensen.
The other reason that we tend to treat crimes that are mala prohibitum differently is that the absence of intrinsic moral wrong tends to result in more frequent and widespread violations. We know that there will be more violations by people who are otherwise law abiding and this restrains prosecutorial and sentencing practices. We can't throw the book at everyone and this has a mitigating impact with respect to those people who do manage to get caught. It's not that we decide that breaking the law is OK, it's just that we know there are a lot of people who have done the same thing and have not been caught and that influences what consequences are fair.
My problem here may be more with the law than prosecutorial discretion. Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.
This takes us to the problem of uneven application. The problem here is not necessarily with the DA. Local prosecutors address local problems and the Milwaukee County DA would not typically have jurisdiction to investigate the Dane County Executive or the Governor. (One might wonder if the same effort was - or should have been - expended on investigation of the Mayor's office but I don't pretend to have the answer.)
If nothing else, decentralization of decision-making has resulted in a twenty months of turning the activities of a single politician's office inside out. At this point, that effort seems to have found relatively little but my larger point is that only one politician has been subjected to this withering scrutiny and, given the nature of political appointees, it is highly likely that, were the same exhaustive examination applied to the offices of other politicians, we'd find more or less the same thing.
Of course the fact that "others are doing it" is no excuse. That would be more reassuring if our public discourse maintained a scrupulous care about who and what has been charged and what has and has not been proven.
But we don't. Partisans are going to distort and misrepresent these charges. They are going to run ads that grab newspaper heads that are, at best, incomplete and, at worst, misleading. That's politics but it ought to be kept in account when we craft laws concerning political behavior and as we enforce them.