As a long-time member of the movement against modern human slavery, I object to Amar Bhide's trivialization of the crime of labor slavery.
The world is well aware of the fact that India's upper middle class and elites generally engage in the exploitation of domestic workers. The entire intellectual effort to defend Dr. Devyani Khobragade appears to be predicated on the idea that her actions were justified. I strongly disagree.
Domestic worker Sangeeta Richard was forced to work an average of 90-to-100 hours per week for the $573 per week that she was paid. That is an average hourly was well under $2.00.
It was an Internet-saavy community of South Asian domestic workers in New York who inf0rmed Ms. Richard that she was being grossly underpaid. They assisted her escape from Dr. Khobragade's abusive home in mid 2013.
Dr. Khobragade committed intentional visa fraud. As many Indians have commented on the social media boards that have discussed the Khobragade case, many Indians have committed such fraud. What really gets people upset is the fact that the US took action in this case.
Dr. Khobragade went further than just falsifying her A-3 visa paperwork and making false statements to cheat the US visa system. She also coordinated a campaign of intimidation with her father, Uttam Khobragade, in an attempt to silence Ms. Richard and her husband. In the US we call that witness tampering.
Dr. Khobragade is now persona non grata in the US. She can only return when she agrees to present herself in federal court so that the criminal case against her may proceed.
Given that the 2013 Global Slavery Report by the NGO Walk Free Foundation has identified India as holding almost half of the world's enslaved people (13-to-14 million out a global total of about 29 million), the US should be engaging in more legal scrutiny of domestic worker labor slavery from India, not less.
Good article. The impression I get from Preet B's behavior is that his prosecutions are politically motivated.
Rajaratnam and others, ok, fine, nobody is shedding any tears for Wall Street villains. But going after Khobragade, seems a bit more of a grey area. This was not a case of physical abuse or keeping the maid locked up, etc; some such cases do come to light every so often, and those are more clear-cut.
Last straw was the indictment of Dinesh D'Souza for what is alleged to be a fairly low level violation, according to the conservative press. It is hard to escape the conclusion that it was motivated by D'Souza's books & films that were critical of Obama.
I agree that prosecutors have too much discretion. What particularly concerns me is that mandatory minimum laws take discretion from judges and gives it to prosecutors, who decide how to charge a defendant. If we can't get rid of mandatory minimums, we should at least give the judges the authority to revise the charges. This should get prosecutors to think twice about overcharging crimes in an effort to look tough on crime.
I echo Prof. Komerath's sentiments. This, as well as, Prof Komerath's piece, is excellent.
Thanks for an excellent article, so glad to see this from someone who knows about the law. It confirms much of the feelings of unease I have had at seeing this outrage, but of course I could not put those into clear legal context as you have done. I posted mine at http://narayanankomerath.wordpress.com/2014/01/25/the-state-departments-role-in-the-arrest-and-mistreatment-of-dr-devyani-khobargade-foreign-diplomat-and-the-predictable-consequences-to-america/
Thanks for a great article.
Bharara's overzealousness was nothing but a brazenly blinkered selective implementation of a well meaning law.
Calling the present case a case of human trafficking is an insult to the word.
Anyway, one good thing is that now maybe Bharara will lay off people too big for him. Maybe he will drop half-way his investigation against Goldman Sachs (???), or let them get off with a pat on the wrist.
How much damage (diplomatic and otherwise) this cowboy prosecutor Preet Bharara has caused to America?
Read this well-referenced article:
Author is upset about arrest of a diplomat without recognizing that maid did not do anything illegal herself. To get the benefit of crack in the law is not an exclusive right of rich and powerful. Regardless of how employee behaved, I do not have a drop of sympathy for official who lie under oath and go after intimidating employee's family while misusing power of judiciary in one country and defending in other. All those examples of prosecutions where individuals have been involved in illegal behaviours. It is utter nonsense to argue to let go criminals on hand, since other criminals out there, yet to be apprehended. In modern times stock exchanges have huge responsibility of protecting savings of average citizens who do not have financial education and expertise and whose retirement plans are tied with barrage of regulations and limitations. This is a wrong notion that economics supersedes laws and needs of the community. Money is not everything. While money is created by man there is lot to life and nature that economics and business could not provide for.
What is the meaning of this article? Prosecutors are not the root cause of problem. Any citizen can ask for legal remedy with court when dissatisfied with laws or outcome of elected body's action or inaction. Extreme and never satiable appetite for money by corporations and super rich individuals is the problem. Rhetoric of "that government is the best that govern the least" bares huge responsibility and commitment of highest standards of behaviour that include to share the wealth of the nation equally and help those in need while to keeping powerful humble. Freedom is not granted, one has to earn and keep earning by behaviour and actions on a daily basis while respecting the freedom of others.
Lake Worth: Might I suggest clicking through the link to the article on insider trading in my piece?
Tom Davis: Signature by a Federal judge would indeed be an adequate check -- if the number of crimes were small and all (or most)crimes were prosecuted. That not being the case, a judge's signature does not constitute adequate oversight of the appropriate exercise in discretion.
Think of it in the context of a business. A boss doesnt (or shouldnt) look just at whether a project or a hire makes sense on its own merits. The question of what else could be done with the same scarce resources is crucial and is in fact a crucial feature of management.
And just for the record: while I am a professor at a school of Law and Diplomacy, Im not a lawyer and I look at things mainly through the lens of business and economics
OMG..... a dishonest comment.
"The U.S. Attorney in the District of Columbia is now reportedly considering charges against Congressman Grimm for his tough talk ("I'll break you in half") to a NY1 reporter after the SOTU on Tuesday night."
The initial threat was to kill the reporter, Michael Scotto. "Threaten to inflict body harm" is the legalese for Congress.
If you like thugs, Grimm's there big time.
What is it about today's Republican Party that lying, political sabotage, secret money, and crimes are supported ??? Nixon's Dirty Tricks crew -- is that the model?
Imagine these creeps meeting up with Washington, John Adams, Hamilton, Franklin, and Madison.
Lake Worth - Let me assure you that insider trading regulation indeed remains extremely controversial, at least in academia if not among politicians or the public, precisely because it's impossible to identify any particular person who is injured by it. The economic theory advanced to support insider trading regulation - namely that insider trading leads to adverse selection by market makers and wider bid/asked spreads - has not been supported empirically. In 2013 alone, several academic articles were published questioning the theoretical basis for the ban on insider trading.
The public likes the ban because it thinks it's "fair." This has nothing to do with economics, though.
@ Brian: "waving around the gun provided to him by government (against legally disarmed victims)".
Sir, you are either a convicted criminal yourself, or you're just ignorant.
"Legally disarmed victims"? Really? Do you even follow current events in our nation's cities? Do you possess even the slightest awareness that these supposedly "legally disarmed victims" are arming themselves and shooting up their neighborhoods?
Your "coercive profession" comment makes me think, even more, that you either are or were the subject of a criminal prosecution. Most criminal defendants, truly believe that they are being unfairly and unjustly treated, notwithstanding the crimes that they commit. (Taking responsibility for one's actions isn't high on the list of virtues exhibited by people in today's society.)
Perhaps I'm mistaken and you're a law-abiding citizen. But if so, your generalized rant against prosecutors shows how ignorant you are about how the criminal justice system in this country works. As I stated below, I agree with much of what Professor Bhide states in his piece. And I do not doubt, as so many of the other commenters have shown with the examples they've provided, that there are many prosecutors in this country who, themselves, probably deserve to be prosecuted (or removed from office). But if you truly believe that those who commit crimes of violence or those who "terrorize" innocent people should be allowed to continue doing so because, in your fantasy world all prosecutors are evil, then I hope that you realize your dreams.
One last note: Crimes don't occur spontaneously, like weeds popping up in your lawn. Crimes are committed by people. So it is people--the ones who commit crimes--who are targeted for prosecution. Your notion that "we must pare down the federal & state laws that allow these types [prosecutors] to target the person, not the crime" is probably one of the more foolish thoughts I've ever seen expressed in an online comment.
Good luck to you sir. It's obvious that you're going to need it throughout your life.
OMG... a dishonest essay.
"The harm of insider trading turns on contestable economic theory rather than a serious observable injury."
"No U.S. citizens—the presumed beneficiaries of minimum-wage laws—were underpaid or potentially deprived of a job paying legal wages."
"Congress has greatly expanded the discretion of unelected federal officials."
Professor of Law... really ??? Are you sure about that? Whoever this is, he also needs to take some training at Economics before trying to write about economic impacts of public policy.
Those still doubting the proposition that both federal and state prosecutors have too much unaccountable power in America, would do well to read the bombastic and ill-reasoned "David" above; our resident state prosecutor of "almost 20 years." Here we have an individual of rather modest intellectual ability & undeveloped ethical character, waving around the gun provided to him by government (against legally disarmed victims), and scorning even the most cogent criticism by those outside his coercive profession.
We have entrusted a good deal of our lives and fortunes to the arbitrary enforcement discretion of the likes of David. That, by itself, is sufficient argument that we must pare down the federal & state laws that allow these types to target the person, not the crime, and we must find some way to gain more effective oversight of this morally defective over-class.
The U.S. Attorney in the District of Columbia is now reportedly considering charges against Congressman Grimm for his tough talk ("I'll break you in half") to a NY1 reporter after the SOTU on Tuesday night. That is wrong on so many levels its hard to know where to begin, but should be added to Amar's list of federal prosecutorial overreach, not on the level of the Scooter Libby-Jean Valjean episode but still scary.
I find myself wondering how much monetary value could be attached to the rent, food, other "in kind" goods and/or services this "underpaid" maid received. I've heard some amazing figures for rents in New York.
So then we have a federal level prosecutor, unaccountable to We the People, wasting huge sums of OUR tax dollars pressing a non-consequential "case". Meanwhile, his ultimate superior remains at large, charged with criminal contempt, and with enough additional evidence against him to further indict for conspiracy to traffic illegally in arms, conspiacy to unlawfulle export them, and at least a few counts of perjury when under oath testifying before Congress in an attempt to hold him accountable for his serious violations of Federal firearms laws, all felonies. It further appears that a charge of complicity in at least one murder perpetrated with the unlawfully trafficked weapons could well be laid. And we are supposed to trust these geys?
I'm sorry, but doesn't every Federal prosecutor require a Federal judge or Federal magistrate to sign an arrest warrant, even in the case of Indian diplomats? And if a Federal judge or Federal magistrate fails to exercise proper supervision and oversight of the warrant requests of a Federal prosecutor, is not that judge or magistrate subject to supervision in turn from the Federal Judicial Conference? Thinking about this would tell us that the proper tools to reel in rogue prosecutors already exist, we just have to use them properly.
You don't have to persuade the public In Alaska that Federal prosecutors have gotten completely out of control. The prosecutorial misconduct in the trial of Senator Ted Stevens was so blatant that the parties involved should be doing time.
Before every reader of this article jumps on the "let's bash prosecutors" bandwagon, the good professor's thoughts warrant a bit of careful consideration. Professor Bhide is, after all, a PROFESSOR of law, not a practitioner. And his online list of accomplishments shows that he has never practiced criminal law at any time in his illustrious career. Indeed, his expertise lies more in the realm of business and, perhaps, economics. Having said this, Professor Bhede is correct to be outraged by Ms. Khobraghade's arrest and the humiliating and inexcusable way she was treated while incarcerated. Professor Bhede is also correct when he expresses concern about the proliferation of federal criminal laws. And perhaps Professor Bhede is also on to something when he quotes the following from the ABA (though this organization is not particularly well-known for either its objectivity or its lack of bias): "'Individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions.'"
But the key words in the quote Professor Bhede uses from the ABA are "potentially subject". For even though there are too many federal criminal laws, it has been my actual experience that the feds prosecute only a tiny fraction of the cases they could file. Additionally, the feds file ONLY when they are assured of victory (not the standard for filing a criminal charge, contrary to Eric Holder's excuses to the contrary) and potential good press. Professor Bhede lists a number of activities that Congress has criminalized since our Constitution's ratification. But the impetus for the "busybody Congresses" that pass these laws usually takes the form of busybody groups and individuals who believe this or that activity should be criminalized. Prohibition readily comes to mind.
More immediately, many of our less-conservative politicians (and the special interest groups that support them) are screaming for stricter gun control. These "gun control advocates" should first take the time to acquaint themselves with the already numerous gun-control laws that Congress has passed. From a federal standpoint, though, these laws often go unenforced by United States Attorneys' offices (especially the one overseeing federal criminal prosecution in the area where I live). Why is this? Mostly because federal prosecutors don't want to be bothered with handling cases that aren't "glamorous" or that won't bring them notoriety--or, again, cases that aren't dead-bang (no pun intended) winners. (Too, federal judges often don't want these kinds of cases "clogging" their dockets. I was told as much by our U.S. Attorney's Criminal Division Chief.) So for those who are ready to jump up and say, "Professor Bhide is absolutely correct! Federal prosecutors need to be reigned in!", I would respond that too often these very same prosecutors do too little with regard to crimes that directly impact the safety and welfare of our society. And I say this because I spent almost 20 years as a state prosecutor, in a major metropolitan area, where I concentrated primarily on handling felony narcotics dealing and firearms offenses. (To those who would protest and say that I was part of the problem because I was part of the "War on Drugs", I would respond as follows: Please go tell this to the little 75 or 80 year old woman who is afraid to go out on her front porch because a group of punks--usually armed--are slinging crack, coke, or meth in her neighborhood. This person lives in fear for her life every day. Tell her that the street in front of her house is not a war zone. She'll say you're wrong.) Very little assistance was provided prosecuting these crimes by any of the U.S. Attorneys and their staffs in the city where I worked. I don't know what, exactly, were the priorities of our resident U.S. Attorneys (several of them came and went during my time as a deputy prosecutor), but I do know that they couldn't be bothered to help make our city's streets and outlying areas safer. With the laws available to them, U.S. Attorneys can do a lot to put really bad people out of commission for very long periods of time. But if a certain crime (or group of crimes) aren't on some important politician's radar, well, such crimes won't be prosecuted by a U.S. Attorney. In this respect, Professor Bhede, your argument fails.
As I stated at the outset, some of what Professor Bhede says has merit. But for somebody who, like the good professor, has absolutely no experience practicing criminal law to paint in such broad brushstrokes draws attention away from the real problems that exist in our federal criminal justice system. Too many laws? Perhaps. Not enough use of many of the laws already in existence? Yes. U.S. Attorneys (and Ass't U.S. Attorneys) who are out to nothing except make a name for themselves and land a higher-paying job in a white-shoe law firm (like the ones that control the ABA)? Most definitely.
In response to the gentleman who practiced criminal defense law for a number of years and who opined that local prosecutors also have too much power, I can only disagree with what you say based on my own experience. As you should be aware, the U.S. Supreme Court has vested all decisions regarding the charging of criminal offenses with prosecutors. Who else would you have make these decisions? The police, perhaps? Some kind of neutral panel of uninformed citizens, drawn from the community at large? The defense bar? (That last one was tongue-in-cheek.) The fact remains, however, that a defendant in a criminal case enjoys a panoply of Constitutional rights intended to protect him until he is "proven guilty beyond a reasonable doubt". He doesn't have to say or do anything to prove his innocence . . . because proving one's innocence is never a part of a criminal trial. As for prosecutors who, in your opinion, "over-charge" defendants, keep in mind that it's the prosecutor's burden, then, to prove the elements of each offense he's charged. I don't doubt that there are many local prosecutors who, in some way or another, abuse their charging discretion. But it seems to me that a good, knowledgeable, and thoughtful defense attorney can rip such cases to shreds. As a well-known defense attorney who I practiced against used to say, "I don't win because I'm 'better' than the prosecutors I try cases against. I win because I take more time preparing the cases I try". Whining, IMHO and experience, was never an effective defense strategy.
...to which I would add this Amar: Prosecutors (both federal and state) overcharge defendants to a drastic degree. Picture yourself as a criminal defense lawyer (as I was for some years)--it's ever so much harder to defend against 13 charges (with a total of 27 counts) than it is to defend against the 3 charges the prosecution is really after. It's a "divide and conquer" strategy, in a sense: Divide the defense's resources (and the judge's attention), then mount the real attack. Happens every day.