Newsday reports that only 44 out of approximately 1500 retired Long Island Rail Road employees “were accepted” into the United States Attorney’s amnesty program, requiring them to give up their disability benefits in exchange for not being prosecuted for fraudulent disability claims.

Only 44 Long Island Rail Road retirees have been accepted into an amnesty program offered by Manhattan federal prosecutors who claim that hundreds face the prospect of criminal charges for filing fraudulent disability claims.

The number — well short of the 1,500 that prosecutors believe may have submitted phony claims to the federal Railroad Retirement Board in a decade long scheme that allegedly could have cost the government $1 billion — was disclosed in a court filing Tuesday night.

This bit of information was offered by the government to show  that its threatening letter sent blindly to retirees wasn’t coercive.

But prosecutors, in their response Tuesday night, said the paltry number of participants shows the incentives are far from irresistible or intimidating.

“Demonstrating the absence of intimidation is the empirical fact that, to date, some 44 individuals have been accepted into the program,” the government wrote. “While this level of participation in the program will result in substantial savings to the RRB, it falls well short of the likely number of participants in the fraud.”

“Clearly,” prosecutors added, “the vast majority of the 1,500 . . . felt no threat or intimidation to bend to the allegedly ‘coercive’ force of the program.”

“Clearly” may be a bit of an overstatement.  “Overkill” may be a more accurate characterization.

The empirical fact is that the Southern District’s gambit didn’t get the result they expected, which was almost certainly more than 44 retirees. While I know no more about who took the bait than they do, my slightly educated guess is that they netted the weakest, most easily scared and, potentially, the most disabled, who were least inclined to risk any possibility of having to fight federal indictment or suffer potential incarceration. 

Sure, there may be some fraudsters in the mix, but the letter was designed to prey on the weak rather than the bad.  People engaged in fraud tend to be tougher than frightened, disabled workers. They aren’t as easy to bluff.

Missing from the government’s facile “empirical” analysis is the fact that the letter was so threatening, so coercive, so intimidating, that it sent retirees to lawyers who were less inclined to shake in their boots and counsel the comfort of giving up a disability pension that the law, whether you like the law or not, allows.  As one might expect, many retirees spoke with one another, spread the word, considered legal advice, and came to the realization that the government was beating its chest, but that they did nothing wrong.

As intimidating and coercive as the letter was, it gave rise to a countervailing force, a backlash, that bolstered the LIRR retirees decision to stand firm if they had done nothing wrong.  While innocence may not mean they won’t be subject to federal indictment and prosecution, particularly when the government’s attack is based only on the Railroad Retirement Board’s decision rather than any wrong done by any individual worker, and as every lawyer knows only too well, you can beat the rap but you can’t beat the ride, they decided not to collapse in the face of government might.

This isn’t to say that the currently indicted workers didn’t do wrong (or did, for that matter).  Certainly, the potential for workers to fraudulently claim disability existed, and anyone who did ought to be held accountable for it.  And there are likely more, hidden among the 1500, who deserve to be in the dock. And there may well be a few among the 44 who took the amnesty offer, along with the frightened and hurting.

And that’s the point: There may be individuals who have engaged in fraud, and any determination of wrongdoing must be based on individualized culpability, not a blanket letter sent to 1500 retirees.  Should the government determine that there is evidence to support the allegation that any individual has committed a crime, then prosecute that person.  But don’t tar a groups with a mass smear.

Most of all, had it not been for “overkill” in the government’s heavy-handed attempt to intimidate retirees, so many of the recipients wouldn’t have sought legal counsel.  And maybe even read a legal blog that suggested the wrongfulness of the government’s approach.

So no, the government’s assertion that its letter wasn’t intimidating isn’t well-founded. In fact, it’s sheer nonsense.  On the other hand, it was not irresistible, but only because there are lawyers out there who don’t quiver at the government’s might. 

Everybody loves empirical evidence, but what it means doesn’t necessarily comport with the government’s spin.  The letter was wrong. Terribly wrong. The letter was intimidating and coercive, and it netted the government 44 retirees who gave up their disability rather than face the ride.  The government should consider itself lucky that it doesn’t have to prove that any of them did anything wrong.