CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, July 22, 2014

Shimick on Pretextual Prosecution and "Breaking Bad"

Scott Shimick (SUNY at Geneseo) has posted Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.

In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

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If "valuable tool for law enforcement" is a sufficient answer to whether a particular practice is good or bad then why not warmly embrace rubber-hose/phone-book beatings, routine threats to go after defendants' spouses or other family members, draconian "trial penalties" and other valuable tools in law enforcement's arsenal? What better ways to coerce confessions than these?

As a long-time critic of worthless academic pursuits I have to ask what value this study brings to the broad issue of ethical/honorable law enforcement. I mean has anybody seriously proposed eliminating such prosecutions? Had the author's conclusion gone the other way would it have helped law enforcement see the error of/mend its ways? I hardly think so.

Posted by: John K | Jul 24, 2014 8:57:08 AM

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