THE QUESTION comes up every time a politician gets into legal trouble — which in South Carolina seems all too frequent: Will the politician go to jail? Or, if he has already been sentenced: Why isn’t he going to jail?
As a Columbia reader asked me after Rep. Jim Merrill’s indictment on 30 public corruption charges: “Do any of these people EVER go to jail?”
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She suggested that politicians “might be less likely to be corrupt” if they thought they could end up in jail, and wondered: “What happens to our corrupt politicians compared to the average human being? They are politicians and serving the people. Their punishment should be WORSE, not less.”
Setting aside the question of whether Mr. Merrill is guilty or innocent — because the topic is much larger than any one person — there is no question in my mind that people in positions of public trust need to get tougher sentences than those who are not. Likewise, high-profile criminals need to get tougher sentences than obscure ones. The sentence sends an important message to the public, both about the consequences of breaking the law and about whether the privileged get a pass from our criminal justice system.
But I think whether or not corrupt politicians go to jail is the wrong question, and the wrong expectation. The better question is this: Will the sentence serve our society?
There are three purposes for any criminal sentence: to protect society from the wrongdoer, to punish the wrongdoer and to convince others not to do what the wrongdoer did.
Sometimes, protecting society means putting the criminal in prison, where he can’t rob or rape or kill again.
But the best way to protect society from lawmakers who pass laws that might hurt the rest of us in order to help their benefactors is to get them out of office. And sometimes, particularly with hard-to-prove crimes, that means accepting a plea deal. For the most part, putting corrupt politicians in prison — like putting other white-collar criminals and a lot of non-violent criminals in prison — simply forces us to pay for their housing, food, clothing and medical care.
The question of punishment is dicier. Ideally, the sentences would be roughly the same for politicians and non-politicians for similar crimes. Ashley Landess — president of the S.C. Policy Council and the person whose complaint prompted the criminal investigation of then-House Speaker Bobby Harrell, which led to the investigation of Mr. Merrill — contends that they’re not.
She notes, for example, that someone in the private sector who committed the equivalent of using campaign donations for personal expenses would be charged with embezzlement — which carries a prison sentence of up to 10 years, compared to just one year for the political crime.
I suspect that if we looked at actual sentences, rather than what the law allows, we’d find that they’re similar. And if they’re not, we do need to adjust one or the other. What we do not need to do is suggest that the punishment for corruption ought to be the same as the punishment for, say, drug dealing or burglary, or any other crime that has no similarities and that carries different sorts of risk to society.
That leaves us with deterrence, which I think is the most important goal of a criminal sentence. This is where our laws need a lot of work. But not work to send politicians to prison. Work that’s targeted to our targets.
The best way to scare the type of politician who might be tempted to profit from his position is by threatening not to let him be a politician any more. That is, to strip him of his office for the conviction. We prohibit felons from holding office for 15 years after they complete their sentences, but that doesn’t kick in for misdemeanors, such as those to which Mr. Harrell pleaded guilty and on which Mr. Merrill was indicted. Surely it should, or at least some shorter time-out.
Convicted legislators also generally get to keep their benefits — most notably a super-sized subsidy to keep buying credit in the Legislature’s super-generous pension plan, but also the ability to keep buying state health insurance. That’s crazy. Federal law probably wouldn’t allow us to strip them of their pensions, but we certainly can, and should, cut off their subsidy for increasing the value of their pensions; for that matter, they shouldn’t be allowed to keep purchasing more pension credit at all. And of course we shouldn’t overlook the traditional route of simply increasing fines for ethics violations.
But deterrence only works when both the punishment and the risk of getting caught and punished are high enough, and in South Carolina, neither is. The Legislature finally agreed this year to let an independent commission investigate complaints against legislators, which helps raise the risk of getting caught. But the commission doesn’t have the staff or the tools to do the job well.
The best tool: random audits of lawmakers’ campaign finance and economic disclosure reports — not simply quick look-sees but actual audits, of the sort the IRS does, comparing campaign bank accounts with campaign reports. Because that’s how you’re most likely to find the violations that aren’t just inadvertent errors.
Routine audits of all reports would be better, but that would cost a lot more money — and the money would have to be appropriated by the potential targets.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.