No collateral purpose
Decisions on who to target for investigation should be made solely on the grounds of suspicious activity, never for a collateral purpose. President John F. Kennedy directed the IRS to audit steel executives who refused to comply with ‘voluntary’ price controls. (James Bovard, ‘A Brief History of IRS Political Targeting’, Wall Street Journal, May 14, 2013.) This action was a grievous breach of the rule of law because:
- he was using the audit power for a collateral purpose (a purpose other than revenue protection);
- there was no law preventing steel executives increasing prices, so the attack on lawful activity was improper exercise of executive authority;
- public servants should never use their office to intimidate: the people should fear only the written law, never government officials.
The right to be formally charged or released
As a corollary of the writ of habeas corpus, a person should not be held without charge. When rioters and protesters are arrested and then released without charge, it is a terrible breach of the rule of law. Either they were acting within the law and were arrested wrongfully, in which case the police must answer for the wrongful arrest, or they were rioting or otherwise breaking the law and must be charged.
The right to know you have been charged
If a person has been charged, he and his lawyer should be told immediately. This enables him to begin preparing his defense. If not, he should be released.
The right to have specific charges made
Charges should be made in a formal written document, filed with the court, in which the person is formally accused of breaching specified criminal laws. The alleged facts the prosecution seeks to establish should also be particularized. This allows the defendant to know what case he has to answer.
Indictment by grand jury
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.
—United States Constitution
The decision to try someone for a serious criminal offence is a significantly detrimental act. Even if acquitted, the person will have a stressful time of it and may lose his livelihood, reputation, family, and property along the way. It is therefore inappropriate for a government official (judge or prosecutor) to make the decision. If he did, he would be exercising undue discretion. The decision should be made by a grand jury. This mechanism prevents criminal charges being misused for the collateral purpose of persecuting the accused when there is no prospect of conviction. Many jurisdictions have done away with this process because the courts are too busy. However, in a properly-run jurisdiction, repeat criminals are rare because they are properly dealt with through permanent incarceration or effective rehabilitation, and therefore the courts will not be too busy.
