Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution
Abstract
Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for a separate, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions, and to the ways in which identifying a defendant's true crime promotes prosecutorial accountability and deterrence. This essay explores the credibility problems created by prosecutorial strategies of the sort used to get Al Capone, and offers some theories about why these strategies have become so characteristic of federal, and not local, law enforcement. It considers the costs of the Justice Department's reliance on Capone-style strategies against suspected terrorists. And it suggests the role that federal courts could play in clarifying the federal government's criminal justice responsibilities, thus making federal law enforcers more accountable.