Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, 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. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies against suspected terrorists. That is no surprise: Pretextual charging is primarily a phenomenon of the federal criminal justice system, where law enforcers are less politically accountable than in state justice systems. The solution is to make the federal justice system more accountable. A variety of forces are pushing in that direction; federal courts could help speed the process along with appropriate jurisdiction and statutory interpretation doctrines. If those things happen, pretext cases will become less common, and the justice system will be healthier.
Daniel C. Richman & William J. Stuntz,
Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution,
Colum. L. Rev.
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