Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it. As I’ve written before, our criminal justice system is fundamentally rotten—it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions. Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal “justice” system.
One might argue that because the vast majority of criminal enforcement occurs at the state level there’s not much point in focusing on the federal system. I disagree. The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering—or withholding—financial incentives to other agencies and jurisdictions. For better or worse, DOJ represents a kind of industry gold standard for criminal justice. And that’s disturbing because, as discussed below, many of DOJ’s standard practices are astonishingly unjust.
DOJ is a sprawling, $30 billion-a-year agency that wears many hats. Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post. But one of the most consequential things DOJ does—and an area in particular need of fundamental reform—is the enforcement of federal criminal laws. On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.
1. Accountability. The lack of accountability among federal prosecutors is simply astonishing. Perhaps the most stark—but by no means isolated—illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind.
Unlike other federal agencies, allegations of misconduct against DOJ lawyers are not handled by the Department’s inspector general, but instead by a notoriously lax in-house entity called the Office of Professional Responsibility. Among other things, OPR has a policy of not disclosing the identity of prosecutors whom OPR itself has determined have committed willful misconduct—which is a remarkable stance for an agency that routinely arranges media-saturated “perp walks” for arrests of high-profile targets like Roger Stone.
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