A Parable of Politicized Prosecution
Three years ago, with TV crews rolling, police helicopters swooped down on construction sites in northern Kentucky overseen by Fischer Homes, one of the 100 largest U.S. home builders. SWAT teams arrested 76 Hispanic-looking workers. Armed agents handcuffed and shackled four Fischer superintendents at dawn at their homes. Government investigators then locked down the company's headquarters and carted off thousands of documents while workers were held in conference rooms, forbidden even to contact their families.
"We don't randomly pick companies. We follow evidence and go where it leads," said a spokesman for Homeland Security's Immigration and Customs Enforcement, which helped arrange for the raids to be broadcast.
It was the beginning of a three-year nightmare for Fischer Homes that concluded with its exoneration -- making it a case study in the dangers of politicized prosecution: What are the consequences when the wheels of justice begin to grind, assuming a logic that sometimes precludes reason and fairness.
The raid came as the immigration debate was once again playing out in Congress. Media reports, stoked by government news releases, portrayed Fischer Homes as a greedy corporation cheating Americans out of jobs.
Seven Fischer associates were eventually charged with harboring illegal immigrants. Each faced fines of up to $250,000 and as many as 10 years in jail. The company was threatened with a felony indictment, including charges of money laundering, under the racketeering laws designed to target organized criminals; conviction would have ruined the company and cost the jobs of almost 500 associates and thousands more subcontracted workers. With a figurative gun at his head, founder Henry Fischer was offered a deal: Plead guilty to a felony, pay a $1 million fine and your employees will be off the hook.
The problem I discovered? The prosecutor's facts were wrong -- Fischer had no undocumented workers on its payroll and the documents confiscated in the raid showed that the company's adherence to immigration and civil rights statutes, which limit what an employer can do even if it suspects its subcontractors have hired illegal immigrants, was exemplary. But the justice system wields enormous power, which often depends on extracting plea deals, sometimes from the innocent and often from supposedly deep-pocketed businesses.
As the government's case against Fischer Homes and its associates disintegrated, prosecutors increased pressure on indicted employees to agree to a plea deal -- to perjure themselves -- in return for the charges being dropped. Remarkably, they refused.
Despite facing humiliation and possible financial ruin, Fischer gambled his company, spending far more than the $1 million fine the government offered to fight what appeared to be politically driven prosecutorial antagonists. "I just couldn't bring myself to write that check when we did nothing wrong," he told me.
We rarely think about the sheer magnitude of power in the hands of government attorneys. They have a fundamental responsibility not to win cases but to ensure justice. It is as much their duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means possible to bring about a just one. But that's not always what happens. Often, government prosecutors have no intention of going to trial. They have perfected a more powerful tactic: exploiting the threat of business losses and manipulating the media to force capitulation.
As in the Fischer case, they use threats of guaranteed jail time under the sentencing guidelines to try to squeeze out guilty pleas. The stakes of a formal indictment (much less a conviction) are too high for most people or corporations to risk. Defendants plead guilty or are found guilty in more than 85 percent of the criminal cases handled by the U.S. attorney's office. The U.S. Court of Appeals rules in the government's favor, at least in part, in more than 92 percent of cases. The deterrents for the accused to not argue its side -- lose your reputation and a little money by pleading out or risk losing everything, including your freedom -- are powerful.
What happens to the innocent when prosecutors abuse their power to further their careers or cater to political expediency? Think of the 2006 Duke lacrosse fiasco, which shattered the lives of many young men. Or the corruption case against Ted Stevens, the former GOP senator from Alaska; the case was overturned by a judge who concluded that he had never seen such mishandling and misconduct by prosecutors. Or the prosecution of the accounting firm Arthur Andersen, found guilty of obstruction of justice in its audit of Enron. The criminal charges were reversed long after the company had dissolved, its 85,000 employees dispersed. All are a testament to the institutional pressures and the personal ambition of prosecutors, with the civil liberties of individuals and the rights of corporations compromised.
At what point do the potential public benefits of vigorous prosecution outweigh the harm when legal protections are suspended?
Most people find it difficult to hold much sympathy for corporations, often forgetting that we depend on a dynamic, competitive economy for our welfare. The victims of overzealous prosecutors and ambitious government agencies are often workers and their families, including many small-business owners who have played by the rules yet now find themselves targets -- businessmen such as Henry Fischer. As Fischer says, "I hope nothing like this happens to you."
Jon Entine, a visiting scholar at the American Enterprise Institute, is the author of "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco, and Extra-Judicial Prosecution." In 2006 he worked as a consultant, researching immigration politics, for a media relations company hired by Fischer Homes. Fischer has no association with his book.