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May 2, 2012

A (Swiftian?) proposal for reforming the prosecutorial function

James Doyle, a Boston attorney and a 2012 Visiting Fellow at the National Institute of Justice, has this interesting new commentary at The Crime Report under the headlined "Why (and How) We Need to Improve America’s Prosecution System." Here is how it gets started:

Here’s a modest proposal in the spirit of Jonathan Swift from someone who has spent a career at the criminal defense bar: let’s divide American prosecutors into two separate and independent offices.

One will be an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

If we do this, we will improve prosecution performance and prosecution accountability. We will also improve the lives of individual prosecutors.

May 2, 2012 at 09:41 AM | Permalink

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Comments

Eliminating so much prosecutorial discretion would take all the fun out of the job. Who would want to be a prosecutor anymore?

Posted by: Jardinero1 | May 2, 2012 12:18:27 PM

I have not decided how I feel about such a proposal. But how can it be described as "modest"?

Posted by: anon | May 2, 2012 12:36:49 PM

I've racked my brain over this type of question in the past only to come to the conclusion that it's hopeless. There is no systematic fix for a man who is determined to abuse his power except to get rid of the man. The proper answer is not to fix the system; the proper answer is to get more people involved in the democratic system so that voters exercise the oversight function which the system entrusts to them.

Posted by: Daniel | May 2, 2012 1:00:55 PM

Actually,

Something I thought of the other day would be something like the ride-along programs that police agencies use, only in the prosecutors office. I accept that there would need to be a time limited bar on revealing some material, but I would also say that giving government lawyers a work-product privilege is an absolute joke.

Posted by: Soronel Haetir | May 2, 2012 1:08:42 PM

I agree with Soronel's proposal for ride-along programs in prosecutors' offices. We'll see then how many people think prosecutors are amoral thugs, which is a constant theme on this site. Indeed, the proposal is in line with my longstanding invitation to readers to just go down to the local federal courthouse, choose a criminal trial at random, sit there for a week, and decide for yourself whether what you see going on is really tyranny.

Posted by: Bill Otis | May 2, 2012 1:15:45 PM

Mr. Otis, I love to sit in on trials and I think you make a valid point about the tiny minority of cases which go to trial.

But criminal trials are the exception not the rule. Nearly all convictions are coerced via plea bargains. I don't get to sit in on interrogations or on the proceedings between prosecution and defendant or defendant's counsel. I can't sit in on those because they are not allowed to see the light of day. I would imagine that if the public was privy to such proceedings they might conclude that what they see is really tyranny.

Posted by: Jardinero1 | May 2, 2012 3:51:21 PM

Jardinero1 --

"I would imagine that if the public was privy to such proceedings they might conclude that what they see is really tyranny."

This is the problem with imagining.

Ask any seasoned defense lawyer who's not an ideological crackpot: The reason defendants plead is that they wind up better off by doing than that by getting the guilty verdict they'd be headed for at trial. Whether by trial or by bargain, convictions are "coerced" by the evidence.

Just think about it. If the majority of defendants would be better off going to the trials you acknowledge are fair, that's exactly what they'd do. They don't because, in exchange for saving the taxpayers the litigation costs of trial, the taxpayers' attorney (the prosecutor) is willing to give away charges he could very likely prove at trial, and/or give a favorable sentencing recommendation. "Tyranny" should be made of sterner stuff. The reason it's called a plea bargain is that it is in fact, for the defendant, a bargain.

Posted by: Bill Otis | May 2, 2012 5:16:52 PM

Mr. Otis, One can turn around your argument and say that if the state can readily get the most severe conviction at trial and minimize any future damage the convicted may potentially wreak and also minimize the future cost to society of such potential damage, then why doesn't it just do that?

The fact is that the resources of the state to carry out any single prosecution are virtually unlimited. Most defendants cannot afford the personal or financial cost of a trial. That disparity provides the prosecution with a huge degree of leverage over a defendant. Given a choice between personal destruction and certain bankruptcy or a temporary loss of freedom and/or a fine, most defendants will choose the latter. When that happens, that is not justice, that is tyranny.

Defense lawyers have their own priorties; the foremost of which is to clear through their case log as quickly as possible. It they took every defendant to trial who might have prevailed, they would not have time for new defendants and might starve to death.

Posted by: Jardinero1 | May 2, 2012 6:12:16 PM

A better and more modest suggestion would be to have prosecutors and defense attorneys drawn from the same pool, so an attorney may prosecute a case one day and defend an individual client the next, as I'm told is the case in some British courts. The problem to me isn't the "prosecutorial function" so much as the "prosecutorial mindset," which such a system would help avoid.

Posted by: Gritsforbreakfast | May 2, 2012 6:52:48 PM

As a person who has worked both sides let me say that Jatdenio's view is cynical and wrong. On either side, I loved trying cases. The State is the side that lacks the time to try a lot of cases. The defense can try cases by simply sitting back and poking holes. Plea bargains mean a win for everyone generally.

Posted by: Robert Barnhart | May 2, 2012 9:53:27 PM

Jardinero1 --

I use my real name here. I was a federal prosecutor for almost 20 years. I will happily state under oath that the by far the principal reason defendants plead guilty is that they are guilty, they know the government can prove it, and they get a better disposition by pleading than by going to trial.

The reason the government agrees to bargains is (1) the press of cases, (2) it's easier on the prosecutor than preparing for trial, and (3) it massively saves short-run dollars, which are the only kind of dollars that get cared about anymore.

Posted by: Bill Otis | May 2, 2012 10:46:09 PM

Grits, Britain can have people switch sides each day because the British Crown Prosecution Service is not anything like a US District Attorney's Office. It is not lead by an elected official the way pretty much every district attorney or county attorney is elected. I believe the Crown Prosecution Service is nowhere near as political at the US Department of Justice; I don't think there is an analogue to it in the United States. It would be a nightmare to establish such a system here. God help the poor defendant who has gets stuck with Harry Connick Sr. or John Bradley. Either one would probably brag about doing no work and forcing their client to plead guilty, and would probably win reelection because of that.

And Robert, defense attorneys cannot try cases simply by sitting back and poking holes. Defense attorneys try cases by telling a more compelling story to a jury, and doing everything they can to present evidence that supports their story. Being content to poke holes in the prosecution's case is a great way to lose a trial that should be won. I don't mean to attack you personally, but I think the "poke holes" theory of a trial is a horrible idea of how to try a case.

Posted by: Paul | May 2, 2012 11:03:00 PM

Mr. Otis,

I have read about you on the internet. I appreciate and have a high regard for your career achievements. That is why I always call you Mister. I am glad to have the opportunity to spar with a person such as yourself.

My real name is Michael Thomas but I do not use it when I comment on various blogs since a name such as mine is irretrievably lost amongst the thousands of others on the internet with my same name, thus I prefer to use a more distinctive pseudonym.

Posted by: Jardinero1 | May 2, 2012 11:08:29 PM

Paul,

Perhaps someone like John Bradly would not reach the point we see now if they had been forced to take both sides of cases their entire career. I do think GFB has a good point about the prosecutorial mindset. I also agree, however, that trying to set up such a system in the US would be an absolute nightmare, even if you were to try it only with US DoJ to start with.

Posted by: Soronel Haetir | May 3, 2012 12:34:49 AM

Jardinero1 --

Happy to make your acquaintance, sir. I look forward to more jousting. Please call me Bill.

Posted by: Bill Otis | May 3, 2012 8:40:17 AM

In our JAG system, attorneys may prosecute one day and defend the next as well. I'm curious if any JAG officers have become civil prosecutors and whether they saw a difference in mentality between the two offices.

Posted by: Mark Pickrell | May 3, 2012 11:22:24 AM

Mark Pickrell --

Great question.

Posted by: Bill Otis | May 3, 2012 11:32:46 AM

bill you can talk all you want about they are all guilty and know it! so that's why they plea! Pity there are so many exornations of people conend into confession for stuff they DID NOT DO by our legal sytem....

Plus there is the fact that if i was a Federal DA and told the fbi, cia, nsa and all the other little alphabet agencies i wanted to know what you had done for every SECOND of the last 20 years of your life in office...i am about 90% certain i could find ANY NUMBER of things that LEGALLY were a crime i could charge, arrest and CONVICT you for! with 100,000 laws on the books today there is NO WAY to avoid it!

Posted by: rodsmith | May 3, 2012 11:55:48 AM

rodsmith --

"bill you can talk all you want about they are all guilty and know it! so that's why they plea! Pity there are so many exornations of people conend into confession for stuff they DID NOT DO by our legal sytem...."

The ratio of the number of people "exonerated" after pleading guilty to the number of people who actually were guilty when they pleaded guilty is asymptotic to zero.

There is not and never has been such a thing as a perfect system. The only realistic question is whether the system we have is quite good at separating the guilty from the innocent, and the answer is that it is.

Ask any non-ideological defense lawyer how many of his clients pleaded guilty when they had truly clean hands -- i.e., no involvement -- and I believe you'll get the same answer I do when I ask that question: approximately zero.

Posted by: Bill Otis | May 3, 2012 5:56:10 PM

oh i agree with this!

"There is not and never has been such a thing as a perfect system. The only realistic question is whether the system we have is quite good at separating the guilty from the innocent, and the answer is that it is."

BUT when you do hit that one where the system failed. it's time to stop and look and see if there is anything we can do to fix it so it doesn't happen again. Not try and cover it up like the current set of retards at the USSC who are retarted enough to state "innocence is no reason to void a jury verdict!"

Posted by: rodsmith | May 4, 2012 1:24:40 AM

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Posted by: Male Enhancement Pills | May 4, 2012 1:50:05 AM

rodsmith --

It's all about tradeoff's. We can have a system that guarantees no innocent will be sent to jail, ever. That system would be to abandon all prosecutions. Or we could cut back on the number of innocents sent to jail by requiring a unanimous verdict from a jury of 100. And so forth.

The problem is that the overall social harm brought about by tipping the system much farther toward the accused will be substantial. There is a social cost to not convicting the guilty as well -- a cost to justice and, of course, a cost to future victims of the fellow who beat the rap because the rules made it too hard to convict him even though he deserved it.

Our present system is actually doing quite well, as social and governmental systems go. The percentage of inmates who are innocent is extremely low, and crime is half what it was 20 years ago.

Posted by: Bill Otis | May 4, 2012 12:35:19 PM

'The percentage of inmates who are innocent is extremely low,'

what a great 'smoke up the arse' statement I'm sure those falling in the 'extremely low' category would have an entirely different take on that senseless gem of a comment

Posted by: muy bueno | May 4, 2012 4:59:24 PM

oh i agree with this!

"It's all about tradeoff's. We can have a system that guarantees no innocent will be sent to jail, ever. That system would be to abandon all prosecutions. Or we could cut back on the number of innocents sent to jail by requiring a unanimous verdict from a jury of 100. And so forth.

The problem is that the overall social harm brought about by tipping the system much farther toward the accused will be substantial. There is a social cost to not convicting the guilty as well -- a cost to justice and, of course, a cost to future victims of the fellow who beat the rap because the rules made it too hard to convict him even though he deserved it."

All i'm saying is that when we do find a case where something went wrong and an unwaranted carge occured it is better in the long run for us to stop! get off the old high horse and see what went wrong to cause it. Not come up with criminal stupidity about "being innocent is no reason to disregard a jury verdict!" sorry in my book a statement like that is legal grounds for anyone who there to hear it to pull out a gun and put a bullet through the empty head of anyone STUPID enough to say it!

But i did not say we should make it easy to get off OR easy to convict. I know it won't be possible to fix every problem. we're HUMAN! that is never gonna happen. But where we can fix it without upsetting that delicate balence between being too hard or too easy we should!

but hard to know if we can if the govt is ACTIVELY HIDING THE INFO!

Posted by: rodsmith | May 4, 2012 11:04:19 PM

muy bueno --

You take umbrage at my statement that, "The percentage of inmates who are innocent is extremely low."

Well I'm sure your umbrage is all well and good. But if you'd like to produce, say, FACTS showing the contrary, feel free.

You won't produce them, and not simply because facts are secondary to your emoting. You won't produce them because my statement is true, as I strongly suspect you full well know.

Posted by: Bill Otis | May 4, 2012 11:23:47 PM

Bill, estimates of the number of innocents in prison that I'm aware of come in in range from 1.5-3.3%. But let's cut that lowest figure in half. If it's even .75%, that's around 16,500 innocent people currently imprisoned in America. You may think that number "extremely low," but that's easier to say when you're not among them.

Posted by: Gritsforbreakfast | May 5, 2012 8:07:03 AM

Grits --

Thank you for producing those facts. The question of tradeoff's is inescapable, and will so remain for as long as human beings are fallible. Every system ever devised or devisable will produce convictions of the innocent and acquittals of the guilty. In a sense, the entire debate about criminal procedure is about whether the present mix falls too much toward one side or the other. And just as, unarguably, the convicted innocent has a legitimate beef, so too does tomorrow's victim of the strongarm who got erroneously acquitted and set loose today.

Posted by: Bill Otis | May 5, 2012 12:01:17 PM

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