Department takes a “take it or leave it” approach

Administrative enforcement actions by government departments have a lot in common with criminal prosecutions. A department will receive a complaint and conduct and investigation. Or they will conduct a routine audit and discover irregularities. The department will then develop their case to the point where they believe that they either have a case or not. They can take as long as they want and they can “cherry pick” the cases that they prosecute. As a result, most respondents face the choice of a hearing in front of an administrative law judge or taking a deal.Administrative actions, like criminal prosecutions, are built on settlement. Given that departments should have considerable weight to their case, respondents should settle. In reality, however, the situation is not as simple as guilty people taking the best deals they can. Like in criminal prosecutions, investigations are often riddled with errors and prejudice. Some people are charged who are not guilty. Ideally the system should take account of the fact that it could be wrong, or that decent people make mistakes, or that justice simply demands compassion. Departments should look at the whole picture and try to do justice rather than simply prosecute.Justice is not what is meted out by departments. Departments often use the power that they have within the system – the resources of the state and a biased court system – to force respondents into settlements that will haunt them for decades. I frequently hear that a respondent must simply “take it or leave it” from assistant attorney generals. They can say that because of the power disparity and they are not necessarily concerned about the search for truth or justice. Such an attitude suggests that the system is broken and won’t be fixed until the Attorney General’s office takes seriously its professional responsibility to search for truth.