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August 20, 2012

"Do Prosecutors Have Too Much Power?"

The title of this post is the headline of this new New York Times segment of its series "Room for Debate."  The NY Times brought together five leading lights to comment on this question (all of whom appear to supply variations on the answer "Yes").  Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.)

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power.  When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

August 20, 2012 at 09:14 AM | Permalink

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Comments

That's surprising. I wonder whether there was something about the deal the judge didn't like?

I really hated doing Anders appeals of plea convictions when I was a clerk, but these routine waivers do retard the development of law.

Posted by: Gray R. Proctor | Aug 20, 2012 1:12:58 PM

In regard to the title question, I would answer "no", the power held by prosecutors is in fact necessary. What is missing is responsibility commensurate with that authority.

I have not, however, managed to think of any reasonable way to apply the needed responsibility to the position, except perhaps by allowing private prosecutions to be brought against public prosecutors (with hefty penalties for the private party if the charges are not proven).

Posted by: Soronel Haetir | Aug 20, 2012 1:37:00 PM

The needed responsibility could be applied by the bar applyig appropriate sanctions for unprofessional conduct by both prosecution and defense attorneys.

(When is the last time you saw a defense attorney disciplined for incompetence after a oonviction was set aside for ineffective assistance of counsel -- an element of which is professional incompetence.)

The bottom line is that somebody -- whether elected or appointed -- in the executive branch has the constitutional obligation to faithfully and justly enforce the law including deciding what cases merit criminal prosecution and what sanction is being sought for the alleged violation given limited budget resources for prosecution and limited (but not necessarily small) capacity for incarceration.

Will some prosecutors make bad, but not unethical, choices? Yes, but what is the solution? An uber-prosecutor to second guess the original charging decision or plea decisions? The uber-prosecutor is likely to be subject to the same flaws. Liability for mere negligence? For a conscientious prosecutor (which in my personal experience on both sides describes most prosecutors -- as well as most defense attorneys in terms of being equally conscientious), the job already involves agonizing over tough decisions for below-market wages without adding the threat of personal liability.

Posted by: TMM | Aug 20, 2012 4:21:26 PM

TMM,

Actually, I would put the bar for criminal liability for prosecutors very low. The power they wield is extreme by necessity; The punishments for transgressions should be just as extreme.

And I would put the power to bring that punishment to bear outside the normal hierarchy of government employ. Bar sanctions are not enough when the wrongs prosecutors undertake cut at the very heart of criminal liability for others.

Just as I would have no problem with executing criminals for thefts as small as $50, I would have no problem executing prosecutors for ethical lapses. They /should/ be thinking about whether what they are doing is right pretty much every moment they are undertaking the people's business.

Posted by: Soronel Haetir | Aug 20, 2012 4:49:43 PM

Typical of academia, most of the commentary is about federal crimes and prosecutors, ignoring the reality of the vastly larger state criminal justice system. Also the NYT calls it "Room for Debate" yet all I read was an echo chamber of mandatory minimums are bad and prosecutor's decisions to charge and demand appellate waivers should be circumscribed or banned. There was no debate because there was no contrary position.

There were gratuitous swipes at prosecutor integrity, of course, to remind us that even in law enforecement people makes mistakes and some act illegally and unconscionably. The question is not whether this is bad, it is, but whether the cure is worse than the disease. Appellate review of every case for sentencTypical of academia, most of the commentary is about federal crimes and prosecutors, ignoring the reality of the vastly larger state criminal justice system. Also the NYT calls it "Room for Debate" yet all I read was an echo chamber of mandatory minimums are bad and prosecutor's decisions to charge and demand appellate waivers should be circumscribed or banned. There was no debate because there was no contrary position.

There were gratuitous swipes at prosecutor integrity, of course, to remind us that even in law enforecement people makes mistakes and some act illegally and unconscionably. The question is not whether this is bad, it is, but whether the cure is worse than the disease. Appellate review of every case for sentencing error, sorry Ms. Gertner, but that is a complete waste of time and money. Here in California state court, where appellate waivers are rare, they are virtually non-existent for discretionary sentencing choices and yet no serious person is clamoring for more appellate reviewing error, sorry Ms. Gertner, but that is a complete waste of time and money. Here in California state court, where appellate waivers are rare, they are virtually non-existent for discretionary sentencing choices and yet no serious person is clamoring for more appellate review.

Posted by: David | Aug 21, 2012 12:27:34 AM

David --

Your comment repeated a couple of lines, but the substance is right on. Paul Cassell, a good man and a friend of mine, has been opposed to MM's for a long time, so there's nothing new here. Nancy Gertner is a defense hack, now quite appropriately hacking away at Harvard Law. I had to laugh when she perforce (and very quietly) admitted that all the federal courts of appeals have upheld appeal waivers, then proceeded to criticize them using the very arguments she and her defense bar friends have been making, and losing, all over the country and for over 20 years. What a joke.

Hey, but look, if you can't win your case in a single court, you can always complain on the pages on the NYT.

Posted by: Bill Otis | Aug 21, 2012 12:15:07 PM

Sorry about the disjointed comment. It was posted correctly, but I am having great difficulties in the site taking my comments. Here is the corrected (hopefully) post.

Typical of academia, most of the commentary is about federal crimes and prosecutors, ignoring the reality of the vastly larger state criminal justice system. Also the NYT calls it "Room for Debate" yet all I read was an echo chamber of mandatory minimums are bad and prosecutor's decisions to charge and demand appellate waivers should be circumscribed or banned. There was no debate because there was no contrary position.

There were gratuitous swipes at prosecutor integrity, of course, to remind us that even in law enforecement people makes mistakes and some act illegally and unconscionably. The question is not whether this is bad, it is, but whether the cure is worse than the disease.

Appellate review of every case for sentencing error, sorry Ms. Gertner, but that is a complete waste of time and money. Here in California state court, where appellate waivers are rare, appeals are virtually non-existent for discretionary sentencing choices and yet no serious person is clamoring for more appellate review.

Posted by: David | Aug 21, 2012 5:52:26 PM

Who has the veteran NFL writer Vito Stellino of the Florida Times-Union reminisces. When Stellino covered the Pittsburgh Steelers, requested a phone conversation with Joe Namath to discuss their roots in western Pennsylvania

Posted by: Youth Giants Jersey | Sep 1, 2012 4:40:28 AM

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