This appeared in today's Houston Chronicle and it irritated the hell out of me. What do you think?

July 24, 2006, 1:05AM
Law and order dilemma: Who checks prosecutors?

By NEAL PEIRCE

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 that 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 systemwide 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 everyday 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 phase.

Views on class and race, even unconsciously, lead prosecutors to make shoot-from-the-hip decisions 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 the 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 the 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 to 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.

Peirce is a syndicated columnist who specializes in city and state affairs. (nrp@citistates.com)

Although this particular attack is focused on prosecutors, the accusations that come from this professor are typical of a broader attack on criminal justice that seems to have begun with the rise of conservatism over the last decade. As liberals, namely those who feel uncomfortable with the recognition of authority and the delegation of power to persons who make judgments on the behavior of others, feel more and more separated from the majority of decision-makers, they have stepped up their editorial attacks on those decison-makers.

Over the last decade, liberals have focused on the expanded media outlets as a new vehicle for delivering their message of doubt and distrust. Editorials can now be posted on websites and blogs and find their way into homes. Previously, such writing would have died a lonely death.

I'm not saying that the liberal authors have nothing of value to say. I am only saying that they have been released from the old process of scrutiny that required them to provide restrained or proven points of view. Now, the bolder the statement, the more likely it will be circulated.

So, as this professor does, he must provoke outrage with overstated and exaggerated accusations, attacking an entire system with little real evidence. No doubt someone will follow up with an official sounding "report" that documents a few cases and turns them into bogus statistical proof.

PS. If I had to be a public defender in Washington, DC, murder capital of the world, I would probably feel pretty frustrated, too.

[QUOTE]Originally posted by Shane Phelps:

"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."


And I thought that was why we have defense attorneys!!

quote:

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The public has been inundated with television programming that justifies prosecutors going right up to the edge on ethics and the law to get the "bad guys."

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This is what he's basing his "educated rhetoric" on. I'm sure there is maybe a rogue DA out there somewhere, but most I know bend over backward to AVOID this appearance. And gee, what about the other side of it: that defense attorneys are worse???? I'm reading a book now about the trial of Cullen Davis (from the 1970s) and it absolutely had my blood boiling when I was reading about some of the tactics used by the defense in that case. Even now, there are defense attorneys that I know (but have trouble proving - and dare I??) consistently cross ethical lines. And this author completely ignores the fact that the criminal justice system is heavily favored toward defendants, especially in terms of discovery issues and their rights. Defense attorneys have much less oversight than even prosecutors do.

And here I was under the misguided impression that journalists were supposed to be neutral...

Ah, there's the rub.

There are so few true journalists these days it seems.

But does this guy even pretend to be a journalist. Seems to me he is just someone with an axe to grind so he can get his 10 sec. in the spotline.

How else is an idiot like this guy going get any limelight? Obviously not through intelligence or talent.

I used to be a journalist and one of the reasons I bailed out was because it became impossible to do any real reporting - the mandate was to find an outrageous claim and give voice to it. Especially if the claim was being made by someone with credentials (e.g., a professor...). Balance? No, that's wishy-washy. Objectivity? No, that requires people to think for themselves.

here's the line I liked from the story, because it's an incredibly blatant comment from the writer (an absolute journalistic no-no as far as I'm concerned) and because it completely reverses the natural order of accountability, as I see it.

"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."

Who wrecked his life?? Him by selling drugs, or me by enforcing the law? Come on, now.

i'm just amazed that this person was able to get press by making arguments that have clearly already been made before. and the proposed solution appears prohibitively expensive. to build upon what john b. said earlier, are we really supposed to answer this "problem" by growing the government with another level of bureaucracy?

quote:

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are we really supposed to answer this "problem" by growing the government with another level of bureaucracy?

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no, no, no...we are just supposed to stop prosecuting alleged violations of a penal code that should never have been enacted in the first place. we should all have "something better to do." let anarchy take its course.

As one of my law professors pointed out, removing decision-making autonomy from one level of the CJ system just displaces it one level down.

He was speaking in the context of the federal sentencing guidelines - that if you tie judges' hands as to what their options are, it becomes the prosecutors who wind up having the most "say" in how a defendant is likely to be punished. Removing or lessening prosecutorial discretion would have a similar downward effect. It would leave the police with the greatest discretion as to who would be charged with what ... which would then largely determine the outcome of each case, since prosecutors and judges would have little further say.

I seriously doubt that Mr. Davis wants police officers having that much control, but that is the end result of what he seems to be advocating.

the point that such corrections would only displace the decision-making authority one level down really emphasizes the short-sightedness of the argument about reform. it kind of reminds me of how the supreme court wrestled with how to combat jury misconduct. while recognizing that it in those circumstances where it occurred, they noted that there was no way to fix it without completely destroying the jury system. i think the same thing can be said here about the arguments against prosecutors. it is, of course, no surprised to me that Davis was a former public defender as this type of criticism is indicative of someone whose skills lie in exposing problems rather than offering realistic solutions.

(insert wry tone) it seems to me that the real motivating factor that pushes prosecutors to the edge of ethics (if such claims are to be believed) would seem to be the difficulty of overcoming the procedural hurdles and burdens imposed upon the state already. perhaps making things harder on the defense would make it easier for prosecutors to focus upon the case instead of responding to defense tricks. perhaps a laissez faire approach is better. hey, it's french, how can the liberals object?

[This message was edited by David Newell on 07-24-06 at .]

Don't loose any sleep over the good professor. She's just trying to sell books (see Coulter, Ann).

As for her assertions, I haven't (and won't) read the book, but it sounds like her complaints center around the power prosecutors have been ceded through the use sentencing guidelines. This is a frequent criticism of the federal and most state judicial systems. Lucky for us, that argument does not wash in Texas, since we have no such sentencing structure.

I'm sure she'll point that out in her book and shower Texas with compliments, holding it out as a paragon of prosecutorial virtue.

There was a time in my memory that college professors were respected voices in public debate. Those days are over. Perhaps that explains the attacks by those poor souls made voiceless by their own idiot brethren (Churchhill anyone?). The author's own profession speaks loudly to power absolutely protected from review.

No professor in America faces the oversight applied to the prosecutor. Every decision is reviewed by institutionally created advesaries (defense lawyers), institutionally created oversight (Trial and appellate courts). Public election and scutiny in the electoral process, as well as media spotlight.

Yet, we are made stronger by our required accountability. Who would possibly want professors making the decisions we make. Regardless of whether those professors are selling books or innocence projects.

My final comment is it is nice to see someone who used to work for a living making a name and money bad mouthing the very system in which she gained her "considerable knowlege".

Of course my views may be arbitrary and mean, I do after all hang out with prosecutors who do something about justice rather than well paid experts that declare it an illusion.

Um... to be fair the newspaper did publish it as an opinion piece not as "real" news.

The editorial opinion pages are often full of outrageous statements. Its not just liberals either... Have you heard the inflammatory conservative stuff from Ann Coulter?

Anyway, here is a link to Houston Chronicle's web site:
http://www.chron.com/disp/story.mpl/editorial/outlook/4066390.html

It's just some writer looking to make his quota for writing, and prosecutors make better cross-hair fodder than defense attorneys. Let's see some more articles about inept defense counsel. I have known a few inept prosecutors, but have seen far more defense attorneys who had no business at all in a courtroom. I make that statement without even breaching the topic of ethics.

David, please don't start speaking french. Having Trey do his german deal is enough already, what with the translations and all.

Just as a reminder, folks, you're preaching to the choir. brain dead writer has no idea we all despise him so much and probably never will.

Of course if it makes you feel better....

Lets not ask for too much on inept defense attorneys. Doing that will just beg for another story about sleeping capital murder defense attorneys.

I am mostly sad that we are at a point where it is hard to trust professors and other highly trained and educated people (like the Ph.D. psychologists who "know" a defendant is not guilty, or gave a false confession, etc.), and the jurors do not trust the police.

I am old enough to remember the grade school talk about "Officer Friendly" and now there are whole campaigns against "snitchin'".

I really want to blame someone, and while the media is an easy target, as mentioned above, left and right are both about ratings. If people tuned out the extremes, maybe the middle would show up again.

All we can do as a profession is what we have always done - maintain the highest standards of professionalism in all that we do and always work to fulfill our duty "to see that justice is done." (Even when jurors and the media do not seem to care a bit.)

I am well aware that the book will contain the rambling, nonsensical statements of a lunatic mind, but I wonder about the publisher - what group of people are the target buyers and why does the publisher think they will have money?

Right you are, Fred.

And we all know "academia" is a fantasy world, and to get tenure or those really choice teaching chairs, you have to be published and write about your area(s) of expertise and be quoted in the newspaper and such. Now I'm not insulting most law professors, as I like you had those law professors who could practice law and teach.

But we all recall those who could barely teach, and had never practiced law in any meaningful sense or to any degree of recognition by their peers or the bench. Yet they banter about opinions and theories to the media. Better yet, do a little sensationalistic "based on fact" book and make some money, impress the school, and get that tenure or that promotion.

At any cost. Including the truth.

i think the goal for the book is to get grant funding to put it into prison libraries.