Featured Research

from universities, journals, and other organizations

Loser-pays-all rule in criminal cases could work for wealthy defendants

Date:
November 5, 2012
Source:
University of Illinois at Urbana-Champaign
Summary:
Adopting a loser-pays-all rule for criminal litigation would likely be feasible only if the rule applied to defendants who are wealthy, says a study.

Adopting a loser-pays-all rule for criminal litigation would likely be feasible only if the rule applied to defendants who are wealthy, says a study from a University of Illinois law professor.

Related Articles


Nuno Garoupa, the H. Ross and Helen Workman Research Scholar in the College of Law, says a loser-pays-all rule could deter some crime when it's applied to either a corporation or an individual with deep pockets. But when defendants are not wealthy, such cost-shifting would be "wholly inappropriate," he says.

"On the defendant's side, the problem is that a significant percentage of the accused in the U.S. are poor, and they might not have the financial resources to repay the prosecutor's costs, should they be found guilty," Garoupa said. "So that might explain why this is not an issue we hear about too often in the U.S. But with the increase in financial crimes of the past decade, you could argue that there is an entire subsection of cases where you have corporate defendants, or very wealthy individuals as defendants, for whom money is not an issue."

For that minority of cases, having a loser-pays-all rule in place could lead to greater criminal deterrence as well as a reduction in legal errors, the paper says.

"People might think twice if they know they'll have to pay back the costs of their prosecution," he said.

According to Garoupa, a co-director of the Illinois Program on Law, Behavior and Social Science, unlike in the U.S., where each party pays its own costs, many common law legal systems use loser-pay-all rules in civil litigation, with the losing party paying for the legal fees and costs incurred by the winning party.

"There has been a lot of discussion about cost-shifting rules in civil litigation, and in that respect, the U.S. is an exception in that most other countries tend to use those types of rules very frequently," he said. "The question is, why don't we see the same type of discussion in criminal litigation. And what we argue in the paper is that there are specific issues in criminal litigation that might explain why a loser-pays-all rule would be more problematic in the U.S."

In criminal litigation, the prosecutor is a public agency funded by taxpayer dollars, not a private party.

"There might be some issues of where the money goes if the prosecutor prevails," he said. "There also might be other complications. If you force companies to pay for the prosecutor's legal costs, they might be less likely to settle, or more likely to invest more money on criminal litigation, so the probability of losing goes down."

It's also possible that prosecutors would go after higher profile cases in search of a big financial payday, which would leech away resources from pursuing less wealthy criminals.

"In practice, apart from some big headline cases, things in the U.S. tend to go into plea-bargaining," Garoupa said. "It's unclear that a loser-pays-all rule would actually help or force more plea-bargaining. One of the explanations for why we see so much plea-bargaining is that prosecutors do not have enough resources or are afraid of over-spending their budget. But if you have a rule that says if you win the case in court, the other side pays for your budget, then you might say, 'I don't need to go to plea-bargaining so often.' "

Whether that would be good or bad depends on the view one has about the role of plea-bargaining in American criminal procedure, Garoupa says.

"Some legal experts think plea-bargaining is great while others think it's a not-so-great aspect of the American judicial system," he said. "So a rule that changes this one way or the other would get into this division of views that already exists."

Another example of an unintended consequence of implementing such a rule: If a prosecutor goes after a client with deep pockets and loses, would taxpayers be on the hook for the (presumably) exorbitant legal defense fees?

"That's one possibility, but you could also argue that prosecutors might also be more careful," Garoupa says. "The other aspect is the fact that prosecutors wouldn't pay this out of their own money. Many foreign countries have passed laws regarding the extra-contractual liabilities of prosecutors and judges. This is essentially where legal systems allow you to sue prosecutors or judges because you think they were negligent in the way they performed their job. So rather than relying on the system we have in the U.S. of impeaching judges or firing prosecutors, it allows you to directly file a lawsuit against them. And this is a big deal, because if they lose, it's not the taxpayers' money that is on the line, but the personal fortune of the prosecutor or judge."

Garoupa says the paper is not a mere thought experiment, since such a rule could have significant implications for anti-racketeering prosecutions and the financing of law enforcement activities.

"The policy implications are clear: There is probably a good idea as to why this would be less popular in criminal litigation than in civil litigation, and why this could be a good idea in the criminal litigation of a corporate or wealthy defendants," he said. "But we would have to think how to minimize the harm to the wealth-constrained, which is something that policymakers haven't been too worried about. You also have to think about how this would affect the strategy of the prosecution and the defendants.

"When you take into account all of the complexities, it's unclear if that's a good or bad idea. We argue in the paper that people tend to see the positive side, and that they're not looking at the other side, which is that it would likely make criminal litigation more expensive, and it would also probably force prosecutors to spend more money on litigation."


Story Source:

The above story is based on materials provided by University of Illinois at Urbana-Champaign. Note: Materials may be edited for content and length.


Journal Reference:

  1. Garoupa, Nuno M. and Echazu, Luciana. Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation? International Review of Law and Economics; Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-03, 2012 [link]

Cite This Page:

University of Illinois at Urbana-Champaign. "Loser-pays-all rule in criminal cases could work for wealthy defendants." ScienceDaily. ScienceDaily, 5 November 2012. <www.sciencedaily.com/releases/2012/11/121105140442.htm>.
University of Illinois at Urbana-Champaign. (2012, November 5). Loser-pays-all rule in criminal cases could work for wealthy defendants. ScienceDaily. Retrieved October 31, 2014 from www.sciencedaily.com/releases/2012/11/121105140442.htm
University of Illinois at Urbana-Champaign. "Loser-pays-all rule in criminal cases could work for wealthy defendants." ScienceDaily. www.sciencedaily.com/releases/2012/11/121105140442.htm (accessed October 31, 2014).

Share This



More Science & Society News

Friday, October 31, 2014

Featured Research

from universities, journals, and other organizations


Featured Videos

from AP, Reuters, AFP, and other news services

Fauci Says Ebola Risk in US "essentially Zero"

Fauci Says Ebola Risk in US "essentially Zero"

AP (Oct. 30, 2014) NIAID Director Anthony Fauci said the risk of Ebola becoming an epidemic in the U.S. is essentially zero Thursday at the Washington Ideas Forum. He also said an Ebola vaccine will be tested in West Africa in the next few months. (Oct. 30) Video provided by AP
Powered by NewsLook.com
Killer History on Display at Museum of Death

Killer History on Display at Museum of Death

AP (Oct. 30, 2014) Visitors take a trip down murderer memory lane at the Museum of Death located in the heart of Hollywood. (Oct. 30) Video provided by AP
Powered by NewsLook.com
Nurse Defies Ebola Quarantine With Bike Ride

Nurse Defies Ebola Quarantine With Bike Ride

AP (Oct. 30, 2014) A nurse who vowed to defy Maine's voluntary quarantine for health care workers who treated Ebola patients followed through on her promise Thursday, leaving her home for an hour-long bike ride. (Oct. 30) Video provided by AP
Powered by NewsLook.com
Ban On Wearable Cameras In Movie Theaters Surprises No One

Ban On Wearable Cameras In Movie Theaters Surprises No One

Newsy (Oct. 30, 2014) The Motion Picture Association of America and the National Association of Theatre Owners now prohibit wearable cameras such as Google Glass. Video provided by Newsy
Powered by NewsLook.com

Search ScienceDaily

Number of stories in archives: 140,361

Find with keyword(s):
Enter a keyword or phrase to search ScienceDaily for related topics and research stories.

Save/Print:
Share:

Breaking News:

Strange & Offbeat Stories


Science & Society

Business & Industry

Education & Learning

In Other News

... from NewsDaily.com

Science News

Health News

Environment News

Technology News



Save/Print:
Share:

Free Subscriptions


Get the latest science news with ScienceDaily's free email newsletters, updated daily and weekly. Or view hourly updated newsfeeds in your RSS reader:

Get Social & Mobile


Keep up to date with the latest news from ScienceDaily via social networks and mobile apps:

Have Feedback?


Tell us what you think of ScienceDaily -- we welcome both positive and negative comments. Have any problems using the site? Questions?
Mobile: iPhone Android Web
Follow: Facebook Twitter Google+
Subscribe: RSS Feeds Email Newsletters
Latest Headlines Health & Medicine Mind & Brain Space & Time Matter & Energy Computers & Math Plants & Animals Earth & Climate Fossils & Ruins