Prosecutors Undercut their Legitimacy and Thus the Rule of Law

In a wonderfully understated story, last Sunday’s New York Times reports on the hard-to-believe practice of DAs allowing collection agencies to use their letterhead in collection efforts without the DAs making any effort to verify the asserted debt.

The [letters] bear the seal and signature of the local district attorney’s office. But there is a catch: the letters are from debt-collection companies, which the prosecutors allow to use their letterhead. In return, the companies try to collect not only the unpaid check, but also high fees from debtors for a class on budgeting and financial responsibility, some of which goes back to the district attorneys’ offices.

According to the Times, more than 300 prosecutors offices participate in the practice.  And:

Consumer lawyers have challenged the debt collectors in courts across the United States, claiming that they lack the authority to threaten prosecution or to ask for fees for classes when no district attorney has reviewed the facts of the cases. The district attorneys are essentially renting out their stationery, the lawyers say, allowing the companies to give the impression that failure to respond could lead to charges, when it rarely does.

“This is guilty until proven innocent,” said Paul Arons, a consumer lawyer in Friday Harbor, Wash., about two hours north of Seattle.

The partnerships have proliferated from Los Angeles to Baltimore to Detroit, according to the National District Attorneys Association, as the stagnant economy leaves city and state officials grappling with budget shortfalls. Lawyers for the check writers estimate that more than 1 million of them are targeted a year. The two main debt collectors — California-based CorrectiveSolutions and BounceBack of Missouri — return millions of dollars each year to retailers including Safeway, Target and Walmart.

And, if this is accurate, it is an even more astonishing comment on prosecutorial culture:

Gale Krieg, a vice president at BounceBack, said he has turned down business from prosecutors who won’t agree to at least have all copies of the checks sent to their offices, where prosecutors can determine if a crime has been committed. Mr. Krieg, who said the company has contracts in 38 states, acknowledges the limitations: “Whether they exert oversight isn’t something that we can control.”

In other words, there are prosecutors who will only participate if they do not have to provide even an illusion of review.  I assume that the company wants the fig leaf of sending the material to the prosecutors to provide some cover, or rather to provide an argument that responsibility has shifted to the DA.

The prosecutors are taking a bigger risk than they may realize.

  • Ever letter is upsetting a potential cooperating witness in a far more important case
  • Every letter is upsetting a potential juror, who may not reveal the matter in voir dire
  • In any court case in which the practice of the DA were challenged for thoroughness, the sloppiness of the participation in the collection practices might be open to exploration
  • The elected prosecutor is running a risk of an individualized expose — debt collectors are not popular
  • The prosecutor, and perhaps the assistants involved, may be subject to attorney  complaint, for permitting this misleading use of the institution’s name.

At an absolute minimum such prosecutors can not be surprised if they start to lose the trust of many communities — and not just poor communities.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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1 Response to Prosecutors Undercut their Legitimacy and Thus the Rule of Law

  1. Simon Mole says:

    Should the ATJ community be asking where attorney disciplinary counsel are in all this? When I saw this I thought about the comments to my state’s rule against threatening prosecution:

    2 Threatening to use, or using the criminal, administrative or disciplinary process to coerce adjustment of private civil matters is a subversion of that process; further, the person against whom the criminal, administrative or disciplinary process is so misused may be deterred from asserting valid legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal, administrative or disciplinary process tends to diminish public confidence in our legal system.

    3 The Rule distinguishes between threats to bring criminal, administrative or disciplinary charges and the actual filing or presentation of such charges. Threats to file such charges are prohibited if a purpose is to obtain any advantage in a civil matter while the actual presentation of such charges is proscribed by this Rule only if the sole purpose for presenting the charges is to obtain an advantage in a civil matter.

    4 This distinction is appropriate because the abuse of the judicial process is at its greatest when a threat of filing charges is used as a lever to obtain an advantage in a collateral, civil proceeding. This leverage is either eliminated or greatly reduced when the charge actually is presented.

    Comments to Colorado RPC 4.5

    Saying that prosecutors should be worried about public trust is one thing, but if their law licenses were at stake, there might be action to keep the civil legal process from being abused by the prosecutorial branch of government. Seems like legal ethics not culture is key here.

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