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October 6, 2014

Highlighting and lamenting the too potent powers of prosecutors

The Economist has these two new pieces spotlighting and complaining about the powers of modern prosecutors:

Here is an excerpts from the end of the first piece linked above:

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems.  Judge [Jed] Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining — for instance by bringing in a magistrate judge to act as a broker.  He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials.  This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid.  But they have accumulated so much power that abuse is inevitable.  As [Justice Robert] Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

October 6, 2014 at 09:39 AM | Permalink


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I do not know if the argument of the article is true. Assume it is. That further justifies ending their absolute immunities from tort liability. While what they do ordinarily qualifies for strict liability, the softer professionals standards of due care should be applied. They would still then regulate themselves. Liability would deter bad conduct. Damages should be from personal assets, and they may purchase liability policies, as the the other sectors of the economy have to.

In order to have liability, one must have a duty to the plaintiff. And boy do they ever. These dozens of duties are enumerated in statutes covering the Rules of Conduct, of Evidence, and of Criminal Procedure. Then are hosts of duties in the common law. One may not cry before a jury when making a closing statement.

Most prosecutors are employees at will, inexperienced, in the middle of the class (better for the public because of greater common sense than dumbass lawyers from the top of the class). They are not paid well, because they are commodified and fungible.

Here is the worst news of all. Not civil service. Employees at will. If they do not do as asked by the has been political hack running their office, they are goners.

Tort liability is likely to deter the entire enterprise, as I have argument by historic natural experiments. We have 20 million serious crimes and 2 million prosecutions. WE should encourage tighter accountability and more prosecutions. Proceedings are too long, and designed to delay justice, so the plea deal has taken over, and given them all the power of the judiciary.

Here is another reform I have often proposed. It self evident and practiced around the world. The investigative judge, an inquisitor. Today one driving by the scene of the incident will be impeached. Yet the judge is often the most intelligent, and the most experienced person in the court. Unleash the judge, if you do not like prosecutorial empowerment.

Posted by: Supremacy Claus | Oct 6, 2014 3:18:45 PM

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