Federal Criminal Cases and Discretion: the Recent Furor Over IRS Targeting Politically Conservative “Non-Profits”

Federal criminal cases here in Atlanta, throughout Georgia, in Alabama or Florida, and anywhere around the country are all brought after a federal prosecutor makes an independent decision as to whether the matter truly should be brought in federal court. Making this decision involves the time-honored concept of discretion. The recent publicity about the fact that the IRS seemed to have harsher standards for some politically conservative “non-profit” organizations has brought the white-hot light of scrutiny on the whole idea that federal officials use their discretion to go after some groups, while leaving others alone.

First, let’s look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how “Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention.” This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are “intolerable and inexcusable,” and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including “develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities.”

For starters, it is not really all that controversial to stand up and say that politics do not belong in the agencies of our government. Whether it is the Department of Justice making decisions on what crime to prosecute, or the Securities and Exchange Commission excersizing discretion in making cases against some but not all securities fraudsters, when politics clearly is driving these discretionary decisions, someone should immediately stop this from happening. We all know about internal compliance programs in the corporate world, so maybe we need to beef up compliance programs and monitoring within the government world.

What truly startles me is that this process of targeting certain groups has been going on for years, but it only becomes a big issue when politically conservative organizations and their outsized ability to scare elected officials are targeted. No one uttered a peep back in the 1980’s when prosecutorial discretion in bringing federal drug cases decimated an entire generation of young African American men, with wholesale use of the draconian crack cocaine drug laws and their utterly unfair mandatory minimum penalties that were 100 times more stringent than penalties for powder cocaine that was preferred by most White Americans who used the drug. I never heard the political class up in arms when federal prosecutors used harsh penalties from the Armed Career Criminal Act of 1986 to take over street crime cases and hand out life or near-life sentences when some poor mope merely had a gun and was doing yet one more stupid thing. Nobody said anything when federal prosecutors over the past 15 years have engaged in wholesale prosecutions of aliens, imposing harsh sentences on people who may have committed crimes but who have no political power in that they are from another country.

I always tell young lawyers that federal criminal cases are ALWAYS political. Prosecutorial discretion is always exercised with an eye towards the ballot box. While I am glad that the nattering nabobs are at least discussing the concept that prosecutorial discretion should be even-handed, I just wish they would be as loud when it involves folks with less political clout.