Saturday, July 22, 2006

Law and Order Dilemma: Who Checks The Prosecutors?

We've written before about the need for nonpolitical prosecutors whose actions have no place for ego or self-promotion or special rules for special people. In light of the election of the district attorney general in the election in about 10 days and the recent appointment of a new U.S. attorney, the following column by national syndicated columnist Neal Peirce seemed especially timely:

With a recent uptick in crime, tough prosecutors who are ready to convict and imprison perpetrators are likely to be more popular than ever.

But a warning flag is being hoisted by American University law professor Angela J. Davis, past director of the District of Columbia Public Defender Service (and no relation to the more famed liberal activist Angela Y. Davis).

Prosecutors, notes Davis, are “the most powerful officials in the criminal justice system” -- more so even than judges. Why? “The charging and plea bargaining power they exercise almost predetermines the outcome of most criminal cases. Over 95 percent of all criminal cases are resolved by a guilty plea.”

Consider a person arrested for having a quantity of drugs on them. Depending on the amount, the prosecutor can charge simple possession (a misdemeanor), or possession with intent to distribute (a felony which in most jurisdictions means a mandatory prison sentence). So it’s the prosecutor, through his charge and plea bargaining powers, who really decides prison time (and most likely a wrecked life) for the defendant, or not.

The most serious system-wide issue, argues Davis in her forthcoming book, “Arbitrary Justice: The Power of the American Prosecutor,” isn’t the isolated, fairly rare case of a prosecutor coercing witnesses, fabricating evidence, or consciously targeting racial minorities.

Rather, it’s the lack of controls on, or accountability for, the every-day decisions of prosecutors. Their legal responsibility isn’t just to represent the state in seeking convictions; it’s to pursue justice. But too often, Davis asserts, prosecutors exercise their discretion “haphazardly at worst and arbitrarily at best, resulting in inequitable treatment of both victims and defendants.”

There’s the “win-win-win” ethos in many prosecutors’ offices -- elected prosecutors and their staffs out to show how tough they are on crime, or how eager to impose death penalties in heinous cases (especially when there’s strong media interest, or photogenic victims). Sometimes prosecutors overcharge grossly so they can wring heavier plea bargains out of defendants. Or adopt a “don’t ask, don’t tell” policy toward potential police abuses in the arresting phrase.

Views on class and race, even unconsciously, lead prosecutors to make shoot-from-the-hip decisions easily at odds with true justice, Davis asserts: “I saw it all the time in the D.C. system. A rich kid comes in (though few are arrested) with parents and family lawyer, explaining ‘Little Johnny has a drug problem and let’s put him in a program, not lock him up.’ The prosecutor usually agrees. But a poor, black or Latino kid comes in on a parallel drug case, maybe with a public defender, and the prosecutor figures -- ‘I can’t let you back into the neighborhood, I’ll send you to jail.’”

Davis also pinpoints how appointed U.S. Attorneys, pursuing the country’s “war on drugs,” have focused relentlessly on convicting and incarcerating even small-time neighborhood drug dealers and their girlfriends and family members, especially from inner-city neighborhoods, even on the scantiest of evidence. Federal drug prosecutions tripled between 1981 and 1990.

Under our system, all officials wielding government power should be and are subject to checks -- but we’ve ended up, Davis asserts, “giving prosecutors a pass” -- no effective control by voters, legislatures, or the judiciary itself. Voters have little idea of how prosecutors are actually handling cases. Legislatures (and Congress) pay scant attention beyond frequently bolstering prosecution powers.

The U.S. Supreme Court has severely circumscribed conditions under which prosecutors’ judgment can be questioned at all, referring cases to states’ attorney disciplinary authorities that are themselves known to be weak. From 1970 to the mid-1990s, one study found, there were only 44 cases nationwide in which prosecutors faced disciplinary hearings of misconduct; even then, a reprimand was generally the worst punishment.

So what’s to be done? Prosecutors themselves have traditionally resisted oversight. The public has been inundated with television programming that justifies prosecutors going right up to the edge on ethics and law to get the “bad guys.” The American Bar Association publishes standards of behavior for prosecutors, but the strictures have no teeth -- they’re just “aspirational,” Davis notes.

Davis would have national, state and local bar associations conduct in-depth investigations to determine adequacy of current prosecutorial misconduct controls, and possible reforms. She’d have bar associations set up state and/or local prosecution review boards -- not only to receive specific complaints brought by the public, but undertake random reviews of prosecutions and (with colleges and universities) launch surveys to reveal discriminatory practices by race or class.

The idea is that an outside eye could discourage arbitrary, hard-to-justify choices by prosecutors without chilling the essential, fair law enforcement we all depend on prosecutors to perform.

Against the formidable, entrenched power of today’s federal-state-local prosecutorial systems, any prospect of significant culture reform seems remote. But if we’re ever to dare a start, Davis offers a group of eminently reasonable first steps.

1 comment:

John Harvey said...

Fighting crime is really applied Psychology. Behavior Modification 101. In order to change behavior we have two options: positive and negative reinforcement. Since we can't afford to pay people to be good, we are left with the negative. In order for the negative reinforcement to be effective it must be swift, certain and severe enough to extinquish the behavior. Consider that one time you burned your hand on a hot stove; swift, certain and severe. The negative reward was also introduced almost instantaneously. Therein lies much of the problem with the CJ system. The punishment, if it ever comes, isn't even remotely associated with the act.

Since roughly 1 percent of the population commits 99% of the crime and about 1% of that 1% commit the serious crimes or are habitual, I believe we should concentrate on those offenders. I am putting information together right now that details frequent offenders. I want to know what person has been arrested the highest number of times? Care to take a guess at the number? I think I've already got the guy, but I wouldn't be surprised if someone else takes the prize.

I believe if a person has been arrested 10 times or more, he or she needs special attention. It is rather obvious that whatever the system has been doing is failing. Drug dealers should also get special attention, but not at the expense of the other career criminals. They are all a blight on society.

I have come up with a program that I call Adopt-A-Cellblock. In this program all the area churches would form a group then assign cellblocks to "adopt". Those people would minister to the inmates in that cellblock by going into the family situation to see what their needs are. This goes beyond carrying a toothbrush to the jail and reading some scripture. It takes a little more work, but I believe the dividends could be huge.

I would also bring the business community into this and let them be a part of adopting these cellblocks. They could help teach people to read, so they are at least employable. They could also work with these inmates to try to put them into jobs.

The alternative is to continue to spin the cycle, only faster and faster.