Saturday, August 15, 2009

The Socialism of Personal Accountability

We are becoming a socialist state when it comes to personal accountability.

In the wake of this year's legislative session are a variety of new laws and as always a variety of new crimes. Perpetuating the myth that making something a crime comes with no cost to the government, the fiscal notes attached to most legislation making acts criminal continue to state that there is no "direct cost" to the government or that the cost is too vague to be quantifiable. Aside from the blatant falsity of such statements is the even greater cost that accrues from the socialization of responsibility that accompanies most new crimes.

The vast majority of Americans are adamantly opposed (and rightfully so in my view) to any form of government that even remotely resembles socialism, much less communism. Against this backdrop, our country has gone through McCarthyism, the anti-communist sentiment accompanying the cold war, movements attacking proposed solutions to social problems as moving us closer to socialism, and most recently excessive government control of the auto industry and too much of the banking system. The current debate about whether health care reform will result in "socialized" medicine, and the hysteria that such a label invokes, leaves little to no doubt that there remains substantial negative sentiment about the socialization of any aspect of American life.

Despite that widely held core belief, Americans stand still and even embrace the idea that those who harm someone should be accountable to the government rather than to those they harm. The government has taken control of individual responsibility. This transformation of accountability -- from private to public -- has been fueled by every legislative session in Texas in the last 30 years. Each session, the legislature makes it harder and harder, if not impossible, for those who have been harmed to seek and obtain private redress for their harm. Instead, and in just as significant a movement in the opposite direction, those who do something that harms someone else become almost solely accountable to society through laws that make the conduct criminal. Rather than providing a forum and mechanism for one-on-one grievances to be dealt with between those involved, we have inserted government either as the sole mechanism for redress or as the only effective intermediary. We have largely socialized personal responsibility for actions that affect or harm others.

When I was a kid, deterrence from misbehaving was a result of the consequences I knew I would face at home -- not that it always prevented it. When I set up a bow and arrow target against the next door neighbor's air conditioning unit and then pierced the tubing containing the freon with the arrow, I suffered punishment at home, physical, financial, and private probation, i.e., grounding. Today, I would have been charged with criminal mischief and been made accountable primarily to society rather than my next door neighbor. When a friend who did not have a driver's license "borrowed" his out-of-town parent's car and rolled it with two of us in it (what I have always referred to as my American Graffiti moment), we all suffered consequences at home -- not from the government. As a side note, all three of us are lawyers today. Today, it is likely we would all three have landed in court to be accountable to the government. Today, our parents would have spent tens of thousands of dollars as a result of the government imposed mechanisms for us to be accountable to society for our conduct.

The medical profession obtained what it considered to be a significant victory a few years ago through legislation that makes it much less likely that those who some medical professionals harm can be redressed through private remedies and through the courts. They had better watch their backs, however, because those who cannot get private remedies for the harm and their grievances will likely begin to look to society for it. At last count nearly 100,000 people a year die from medical mistakes (i.e., negligence or worse) and nearly 100,000 more die each year from infections and diseases caught in hospitals. Those who negligently or recklessly cause a person's death have committed negligent homicide or manslaughter -- both felony offenses. Those who negligently or recklessly cause bodily injury or serious bodily injury to someone have committed assault or aggravated assault. Medical professionals and administrators had better hope that those who are harmed by their negligence or recklessness and can no longer seek or obtain meaningful private civil remedies do not begin to look to the government and the criminal justice system to hold those who have harmed them accountable. Once it starts -- and it will, the only question is when -- they will wish that they only had to face civil actions.

The Texas Code of Criminal Procedure has long contained a provision allowing for private alternative dispute resolution of disputes that have landed in the criminal justice system as an alternative to continued prosecution. Unfortunately, it is almost never used as a remedy because prosecutors are not required to participate. I say "almost never" only because I cannot be sure that it has not happened somewhere at some time. I can say that I have never seen it happen in over 20 years of practicing in the criminal justice system. I have repeatedly been told that they do not have time or the resources for alternative dispute resolution: the prosecutors' job is to enforce the laws and punish those who break them.

The idea that those who do harm or damage to someone must be held accountable to society through the criminal justice system is just as much a socialization of responsibility as government control of health care is socialized medicine or government control of the auto industry or banking leads us closer to a economic socialization; that is, we all pay for it through tax dollars rather than those who did harm paying for it to those they harmed. Ironically and unfortunately, though not surprisingly, the socialization of responsibility has not done any better of a job at preventing such conduct than occurred when accountability for conduct was private. It has, however, shifted the cost of obtaining accountability from the private to the public sector. Indeed, to hear most politicians talk about it today, we are far worse off today with respect to crime than we were 30 years ago. It should come as no surprise to those who oppose government control of industry that the government is ill suited to provide effective and long lasting remedies in situations that amount to little more than private disputes made public.

I am enough of a realist to know that the problem of excessive government involvement in what should be private disputes will not end any time soon, if ever. It is likely to get far worse long before it gets better. I am also not advocating that there should never be government involvement in events that cause private harm, i.e., murder. I am advocating that those who are in positions to effect change, i.e., those running the government (those in the legislative, executive and judicial branches) need to take a closer look at how government is used to as a tool for accountability. They need to recognize that there are many instances in which what is criminal today ought to be dealt with private remedies. As citizens, we also need to start taking responsibility to seek relief against those who harm us: we should not run to the government, as though it was Mommy or Daddy, ready to be a tattle-tale any time we get upset.

Less government is usually better government and this is no exception. Mass socialized accountability makes for bad government and leaves us no safer or more secure. Count me as against socialized anything and especially against socialized accountability. We would survive quite well if we only had laws for breakfast and dinner and not law4lunch.


  1. Some good points. Although in the inner city they already leave the government out of their personal disputes and conflicts. They settle it themselves usually through drive by shootings and acts like that. Also, they rarely cooperate with authorities because they don't want the government butting in.

    In the examples of the air conditioner and the joyriding if the owner of both items wished to settle it privately and refused to press charges nobody would be arrested nor prosecuted. The normal practice would then be to go to civil court, which is an arm of the government.

    Private dispute resolution will only work when both parties agree to it and tell the government to step off. What do you do when neither party budges from their position and they can't settle it themselves?

  2. Troy, this is a very perceptive essay. Thank you.

  3. I am a CPA and see this in my business with laws like the 1995 Litigation Reform Act which makes it more difficult to sue CPAs for malpractice. Or the Supreme Court's recent Stoneridge decision. Except where violence is involved, i.e., robbery, murder, rape, arson, etc., I can make a good case for the state abstaining from involving itself in what otherwise would be tort suits.

  4. Accountants are already subject to government socialization of accountability. Just ask Arthur Anderson how they liked it. If memory serves, they did not survive it.


  5. Good points Troy. Today, they've just about criminalized everthing.
    Lots of this stuff used to get settled between the fathers. But then, we were lucky to enough to know our fathers.

  6. Hi Troy, some people would only believe what they want to believe. Get them on the Internet and they will only read those that affirms their beliefs even if it's sooooo wrong. That just how human nature is.

  7. Well said, provocative, and true. Thanks from a fellow defense lawyer (former AUSA) in Wisconsin.

  8. Though I have not posted in a long while, it looks like some organizations are beginning to take note of the over criminalization of our society.

  9. Well, it also occurs to me that the Michael Jackson death by doctor fits right into your idea about medical practitioners. Good write, Troy. Thanks.

  10. Thanks Troy. Seems like the Michael Jackson death by doctor fits right into your comments re: the medical profession's accountability, eventually going to criminal justice - broader society, management.