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Apr 3, 2018

Liability, Accountability, and Government Employees

Government employees are insulated from having to take any responsibility for even very serious wrongdoing.

California paid over half a million dollars to settle sexual harassment claims against state judges.  South Carolina paid $2.75 million to settle a lawsuit for a man having been wrongly shot 57 times.  Back in California, the family of a mentally ill man who was tortured to death was paid five million dollars.  You can easily find dozens of similar stories where official misconduct by politicians or law-enforcement officers or judges is discovered and there’s actually some compensation made to the victims. When we read outrageous stories like these, after we get past the part about the absurd or horrific abuse of power, we are gratified that the victims have received some measure of justice in the form of settlement compensation. 

It’s exceedingly rare that the wrongdoers are removed from their positions, and rarer still for them to be sent to prison.  Most of the time they aren’t even indicted, and when they get indicted, acquittals are much more common than convictions.   You would think that a judge or congressman who is a sexual predator, or a cop who shoots an unarmed man, should at least be removed from that line of work; even though that rarely happens, our sense of justice suggests it would be a good idea.  But beyond that, it seems as though justice requires more.  A prison sentence sends one kind of message about justice – a message of retribution.  If you’ve abused your clerk or shot an unarmed man and then lied about it, maybe incarceration is called for.  Plenty of penal reformers, though, have pointed to the advantages of a restitutive model of punishment.  The wrongdoer is still held accountable, but there’s a concern for the victim (or the victim’s family) being restored, at least as much as possible.  The idea of having to make restitution can be as much of a disincentive to bad behavior as the threat of incarceration, and when the behavior does occur, the victim benefits in a more tangible way.  While it’s bad that the abuses took place at all, at least the perpetrators are being held accountable.

Except they’re not.  All of these settlements are paid by the government, not the perpetrators.  That means – this should be obvious, but bears repeating – that the taxpayers are the ones making compensation to the victims, not the actual wrongdoer.  This is largely (but not entirely) because of the doctrine of qualified immunity.  Since the offense was committed by an agent of the state, the state is ultimately responsible for making things right.  But on closer inspection, this method gets everything wrong.

The most obvious problem, that the taxpayers are the ones paying to compensate the victims, might actually be the least conceptually terrible.  To be clear, this is conceptually terrible – making people who have done nothing wrong pay part of the price to fix the injustice is not only unfair, but it decouples the offense from the offender.  But what’s perhaps even worse is that because the individual wrongdoer is insulated from the cost of her actions, the existence of such settlements doesn’t have the disincentivizing effect that the threat of tort liability normally does.  Obviously no set of punishments will deter every single act of wrongdoing, but in general, people are to varying degrees responsive to threats of punishment.  But if you knew that there were an enormously high probability that you would neither receive jail time nor be on the hook for a million-dollar settlement, you might just be a bit more reckless.  If you knew that in all likelihood, you wouldn’t even get fired, all the more reason to do what you feel like doing.

If a private corporation or individual were judged to have harmed someone, the burden of paying for damages wouldn’t be sloughed off onto other people.  I get that we live in a world where there are governments, but it’s not clear why that implies that we cannot hold individuals responsible for their wrongdoing just because they have jobs win the government.  The defense attempted a version of qualified immunity at Nuremberg, and it was rightly rejected.  Why should a Florida prison guard doing similar work be regarded differently?

Reducing the abuses of power in the private sector takes the form of civil and criminal penalties (as we have seen recently in the case of Larry Nassar), along with informal sanctions such as shunning (as we have seen recently with people like Harvey Weinstein and Kevin Spacey).  If we want to see a reduction in the abuse of power by powerful people in government, there has to be a way to hold them accountable in the same way.  That means allowing them to be found personally responsible, and liable for their own wrongdoing.  One place to start would be rethinking qualified immunity, and the several ways that politicians exempt themselves from laws they impose.