Crossing The Line
Is there a crime wave among elected officials in New York State?
That is a question that can reasonably be asked in view of the current spate of indictments, trials and convictions of elected public officials, primarily state legislators. The increasing number of prosecutions, however, is not just today's news. In the last seven years, 32 state level officials have been the subject of criminal proceedings. The ratio of defendants to the entire population of the legislature is comparable to street criminality in some neighborhoods.
We ask: Why? Does the field of public service have a particular attraction for white collar criminals? Or do ordinary men and women, previously presumably honorable, succumb to temptation when substantial public funds are available for them to spend or allocate without their having to carry guns or commit crimes of violence?
Another issue that arises in these cases is the question of just what conduct is criminal. There is a red line defining criminal behavior which some legislators cross; others try to get as close to the line as they can without crossing it. But calculations as to the exact locus of the line may be erroneous, or simply viewed differently by different prosecutors or judges. The closer one drives to the cliff, they greater the likelihood of slipping off it.
A third area of concern is with the effect of influence. Many people in the larger community get jobs and promotions because of their real or perceived influence in generating business for their prospective employers. Some politicians hire themselves out as lawyers or agents for clients who wish to do business with the government, directly or through subsidiaries or relationships.
The late Assemblyman Anthony Seminerio once said that he read the newspapers and learned of people he knew, in and out of public life, receiving substantial fees for work that he performed free of charge as constituent service. That was why he set himself up in business as a 'consultant.' He helped his clients get contracts with state and local agencies in and around his district and received substantial payments for his efforts.
There is an old saying in politics, sometimes attributed to former Governor Alfred E. Smith, which tells us that having a law degree means that you can take a bribe and call it a fee. There is some, but not complete, truth in that observation. The dual role of a lawyer-legislator is in decline today as more legislatures go full-time. The old order, however, continues to flourish in the Empire State.
In these transactions the question arises as to what extent that exchange of favors is criminal. It could be called bribery, and most of it probably is. However, the higher one rises on the political food chain, the less likely it is for such reciprocal benefits to be considered as crimes.
United States Senators and Representatives are presumed to represent the economic interests of their district. Their success in this area is considered a measure of their political effectiveness. Seniority is advertised as a reason to re-elect public officials, lest their districts lose the benefit of the influence gained by their lengthy service.
Bribery is not a crime whose boundaries are precise. Although it is usually clear what is bribery and what is not, there are fact situations in which one party conveys benefits on another which may or may not be criminal. Sometimes the determinations rest on the skills of opposing counsel. An effective and publicly honored District Attorney may be more likely to secure convictions than a weak prosecutor. The data revealing substantially lower conviction rates in Bronx County compared with other counties in NYC indicate that prosecutorial skill is one element in measuring the effectiveness of fighting crime.
Federal courts have higher conviction rates than state or local courts. This may be because more serious crimes are tried by federal judges, or it may be that federal prosecutors are better trained, more competent and more effective than their local counterparts.
The durable adage "Don't make a federal case out of it" indicates the public awareness of the greater severity of those cases. There are many reasons that crime rates are higher or lower at different times for different courts. Nonetheless important in a civilized, law abiding society is that a criminal, whether street or white collar should be diligently and competently prosecuted.
The importance of the position of District Attorney is shown by the fact that in all five boroughs in the city the position is elective, rather than appointive. In the Federal system the US Attorneys are appointed by the President, usually on the recommendations of the Senators of that state, and are employees of the Department of Justice. This enables the President to use the Justice Department to achieve his programmatic goals.
Elected officials are expected to devote some of their time and energy to promoting the economic interests of their districts. Campaign contributions are a measure of their success in this area. They also have a role in inducing Federal spending in their districts. It was said by Mendel Rivers, former Representative from South Carolina, that if another military base was put in his district, it would sink.
The question arises as to whether public officials are more corrupt than they were years ago, or whether criminal behavior is now being defined more broadly to include transactions which might in earlier days have been considered unsavory but not criminal.
This is true on Wall Street. Cases involving insider trading, in which one party to a trade, because of his position, has access to information not available to the public. Insider trading can, and occasionally is, punished by prison sentences. This is as it should be.
If any one person deserves credit for the increased activity of the Federal government in procesuting white collar crime, it is Preet Bharara, US Attorney for the Southern District of New York.
StarQuest #826 5.10.2013 994 words