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March 17, 2017

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

March 17, 2017 at 10:08 AM | Permalink

Comments

The reaction to the firing has far less to do than legal tactics. It has far more to do with Bharara's political goals. Being fired publicly by a sitting president is the most credible way for an individual to gain political capital, particularly national recognition. I doubt Bharara could give a hoot about his legal tactics as much as he does about being mayor or state A.G., which will make him the frontrunner for U.S. AG next time a Democrat takes offic.

Posted by: Eric Knight | Mar 17, 2017 12:31:13 PM

He followed the trends of prosecutions that a federal defender would not like.

The thing to ask is if something atypical was there that made him stood out. I don't know how unique he is here, but his prosecutions of crooked politicians impresses some people there. Another NY Daily News piece praised his efforts dealing with inmate abuse: http://www.nydailynews.com/opinion/preet-bharara-legacy-jail-justice-article-1.2999321

His efforts, against both parties, against public corruption was something that people was thinking about when concerned with Trump firing him. Trump specifically is someone where an independent minded US attorney would be important. The other thing notable here is that originally Trump told him that he should stay. This was seen as a good move by the Trump Administration. Trump changing his mind is not exactly surprising, given his fickle nature, but very well bothered PB here especially if he felt that instead of being kept on long term, he was fired abruptly.

Posted by: Joe | Mar 17, 2017 1:37:57 PM

I'm sure Sessions had someone calling in markers in the southern district.

Posted by: Fat Bastard | Mar 17, 2017 7:59:57 PM

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