Reforming prosecutions

[Update: Further thoughts here.]

I just happened to notice this Atlantic piece asking the logical question in the Aaron Swartz aftermath: now what? Having recognized that a problem exists, what are we going to do about it? Or, realistically, what can we do about it? The piece relies on this brief by LawProf Instapundit Glenn Reynolds. It’s only about 6 pages.

The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

But let’s start with where I left off with my previous post: if we are to have a serious discussion, then it should be an honest discussion. One that acknowledges that if the system is indeed flawed, it is flawed when it comes to all people. So when Reynolds writes:

Most of us remain safe. Prosecutors have limited resources, and there are political constraints on egregious overreaching. And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice.
Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.

It is easy to dismiss him as mighty naive (or professorial?) for believing that there is an “us” or that prosecutors only overreach in political cases. The biggest transgressions occur when no one is looking; outside of the glare of the media and in the dark shadows of the assembly line productions. That is the problem and folks like Reynolds and Conor Friedersdorf at The Atlantic miss the point entirely by assuming that mostly everything is kosher or that due process serves as an effective counter to any improper charging.

But I give them credit for trying because it’s not an easy thing to tackle. The suggestion, ultimately, is that the entire criminal justice system is flawed. And how do we repair it so as it make it more…just.

Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

Typically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer. More often than not, the side that wants to keep the pretrial offer secret is the prosecution: and for good reason. Offers before trial are significantly lower than what the same defendant gets after a trial. If judges were made aware of what the parties thought was appropriate, it might deter them from throwing the hammer at defendants. Or maybe we’d still get 100 year sentences. But odds are that some might think twice. This would certainly be the case if juries were given the power to sentence defendants.

Kerr’s idea is equally intriguing: eliminating the jury’s temptation to “split the verdict” when faced with multiple counts:

Multiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That’s the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can “split the difference” and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn’t know that, giving the prosecution an advantage. Relatedly, the jury likely thinks that the defendant’s conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.

If you’ve practiced here in CT – and I’m sure if you haven’t, your state has an equivalent – then you know that the worst offender is the Risk of Injury statute. It means nothing and everything all at once.

But these are piecemeal solutions that are inadequate and incomplete. For these problems with the system that we decry will remain so long as people believe that the system exists for guilty people only. We need to change the perception; to alter the dialogue. Until people stop asking “how can you defend those people?“, the system will remain broken.


18 thoughts on “Reforming prosecutions

  1. Nick

    I think things are changing for the better in baby steps. I think, thanks to the massive expanse of the prison-industrial complex, more and more people know someone who has been touched negatively by the criminal justice system.
    “Until people stop asking “how can you defend those people?”, the system will remain broken.”
    I get this question less and less. And with more publicity about police abuse, jurors seem somewhat more likely to believe that cops lie.
    No where near fixed, but slightly better than it was.
    (This is in California. The Thomas Kelly case and the BART shooting have done some “good.”).

    1. Bob

      It doesn’t feel like it is getting better in my California county. Too many of my jurors say, more or less, that cops are unimpeachable. Of course, the cop killings here are only summarily investigated by the DA’s office. (Fortunately, their attitudes re DAs becomes more negative after they actually sit on a trial…) Prosecutors should have limited immunity. Connick v Thompson is an unforgivable decision.

  2. John David Galt

    Why do you assert (without explanation) that compensating acquitted defendants for their lawyers’ fees or banning plea bargains are bad ideas? I say it’s about time for both these things to happen.

    Innocent people railroaded by the system are certainly morally entitled to recompense; I would go farther and make it cover all the consequences to the defendant of the accusation (likely loss of his home, his job, and his reputation being high on the list). Indeed, I would require police departments to pay damages for every search or seizure, even with a warrant, that doesn’t result in a conviction of the person who suffered the loss for some crime serious enough to deserve the damage done. Take it directly out of the prosecutors’ or police department’s budget, to deter them from engaging in the over-speculative or personally-motivated use of their powers. If they say they can’t work under those conditions, then they should never have been trusted with badges.

    As far as plea bargains, everybody knows that their real purpose is to make defendants do without all their due process rights, thus enabling the system to inflict far more punishment than is warranted. The power that plea bargains (and the too-high upper limits on punishment most for crimes) give prosecutors is not legitimate. Only a judge — not a prosecutor — should ever be in a position to grant extra leniency or inflict extra severity on accused people in order to “make the punishment fir the crime,” and only after a full trial for each and every one.

    If it’s not worth a prosecutor’s time to try every case, then the system shouldn’t be arresting that person to begin with.

    1. Gideon Post author

      If you noticed, I do provide an explanation for the second assertion: that plea bargains should be outlawed. I’ve written about it before and I stand by my position.

      As for the first: it’s a idea that most likely won’t work – and indeed it doesn’t already. The State does regularly pay the legal costs of the acquittee. I mean, I don’t work for free. So when a public defender client is acquitted, it’s still the State who pays. Expanding that to recompense for privately retained attorneys won’t make much of a difference in my opinion. It’s not like this existing cost to the state has resulted in better verdicts. In fact, I think if it becomes widely publicized that all exonerations will cost the state, then an equally likely outcome is that juries just won’t convict anyone.

      I can’t disagree with the sentiment behind your last sentence, but I’d rather that they arrest the person and realize that they can’t prove their case and let that person go, rather than have a “if we arrest him, we go to trial” attitude.

      Discretion – and here we come full circle – is what is required of them in greater measure.

      1. Bob

        True that. But it is terrible when the line DA has the life experience of a 12 year old and does not know how to exercise enough discretion to find his way out of a paper bag. I wish the State bars had the same spine vis-a-vis prosecutors that they did with the defense bar… But that circles back to your point about the routine nature of the Swartz case.

      2. Maurice Durufle Krumhorn

        That doesn’t answer the question at all. The state pays your fees defending indigent defendants regardless of the verdict. You cannot use that as data in weighing the merits of paying the legal costs for those found innocent when, if found guilty, the defendant must bear his own defense costs (“as part of the punishment” as Reynolds says).

        All this whining and mewling about our “broken” system is just nonsense. Plea bargain sentencing offers in the early stages are no doubt lower as a trade off for the expense and effort necessary to prove up the case at trial, not to mention risk of failure. What possible useful information can be gained by a jury in knowing what that offer was? The jury bears no responsibility for husbanding the resources of the state while the government attorneys do.

        I agree entirely with the professor’s analysis and you should too. Overcharging is a huge problem and is caused by ever intrusive government and regulatory schema. If Mother Theresa could be credibly charged with a crime, then what is “broken” is our politics. Not our legal system.

        – Krumhorn

        1. Gideon Post author

          So, in addition to subjecting indigent defendants (and soon to be indigent defendants) to draconian sentences (which Reynolds seems to agree is a problem), you also want to impose on people immeasurable financial commitments, thereby further imposing a factor in the dispensation of justice that has nothing to do with individual rights and liberties, but rather the capability to pay recompense?

          So, in other words, one system for the rich and one for the poor?

          I don’t know how you can say, on the one hand, that loser defendants should be liable for the cost of trials, while on the other say that another type of cost is of no moment and the “jury bears no responsibility for husbanding the resources of the state”.

          But I will ignore that. The purpose, again, in informing the sentencer of the proposed negotiation is that it provides them with context (note, again, that this is an idea your Professor endorses). If a case is worth 3 years to resolve prior to trial, it’s value cannot suddenly become 45 years after trial. These numbers are all arbitrary to begin with and context is key in determining the “appropriate” punishment. Giving them information that would indicate that the prosecution and defense were satisfied with a particular resolution before trial allows them to make a more reasoned determination of what the “cost of trial”, so to speak, is.

          I don’t think that you’ve read the professor’s analysis entirely or that you have, but you haven’t understood it, or that you have but you haven’t understood mine or that you have but you just don’t care. Either way. I think you’re barking up the wrong tree if you think a defense attorney disagrees that we have an over-criminalization and overcharging problem.

          Where Scott and I part with the Professor is in the solutions to that problem and the consequences of the implementation of his.

  3. Deborah Hillary

    I would like to comment to you directly and personally, to ‘a public defendor’. Gideon, if you notice, I did so about 3 years ago. It took me six years to get my police report, are you starting to get it? Just one question. Is this a New England public defender- just asking. Any comment on those 15 nominated today by Gov. Malloy to superior court judgeships? Thank GOD for Seeley and Goodrow….Gideon, you seem frustrated with good reason, as I have reviewed post of prior years. Just saying, but it is all good to me.

  4. Aaron W.

    I think you misunderstand Prof. Reynolds use of the term us in the quote you use. His entire essay is predicated on the expansion of criminal penalties and statutes even into regulatory law that then make it possible to charge what most laymen would think of as innocent people with technical violations and bring on criminal penalties. I don’t think he is addressing the sadly banal abuse of people charged with what is conventionally understood to be criminal behavior (rape, theft, assault, murder kind of things).

    His essay, as the title would suggest to you if not large swathes of the rest of his short essay is concerned with prosecutors using obscure regulations that come with criminal penalties against people who are not engaged in what most laymen think of as criminal enterprises. These defendants are not assaulting people or stealing or doing things that most people understand to be criminal in nature. They have come to the attention of the powers that be for unrelated reasons and have been found to be in technical violations of the law. They have offended some government personage and so after some investigation can be charged with an illegal sewer connection, or EPA violation that bankrupts them and lands them in jail.

    The us he is referring to are people who had no guilty mind when the crimes, such as it may be, happened.

    It may be that the reasons for and solutions to both kinds of prosecutorial over-reach are the same. Are they? Will the solution for either class of defendants undeserved trouble overlap or are they in conflict? You may think that there is no difference between loading up the charge sheet on a single incident for assault or the EPA bringing criminal charges against a magician for not complying with regulations on the use of rabbits (real story – a guy is facing two years in jail for not having a rescue plan in case of emergency for his rabbit). They seem like really different problems to me with different political constituents and different plausible solutions. But, maybe they are just expansions of the same phenomena and incentives.

    1. Gideon Post author

      I understand your point and I think it makes his essay worse than originally imagined. His focus and concern is the abuse of prosecutorial power in the context of “technical violations” that are not the common “criminal enterprise”?

      So reform is necessary for the system only when it has the danger of encroaching on currently law abiding citizens? I don’t understand your comment at all, frankly. Isn’t the cause for concern the greatest when people in power are abusing that power at the expense of those whom society despises? Is it okay that there is overprosecution and underfunded defense just because people are charged with “banal” crimes like rape, murder – which make up the vast majority of crime?

      They are the same problem and this “us vs. them” mentality is harmful to all of us.

      1. Aaron W.

        This seems analogous to the theory that you can defend the first amendment by protecting marginal, lewd, or extreme speech. Defend the margins and the center will be fine. I think that with the advent of speech codes, campaign finance reform, attempts by the state to define some people as journalists with rights and others without and myriad of other issues we have seen that often it is exactly the kind of speech that the first amendment was designed to protect that is squeezed out while the margin merely becomes normalized. Annie Sprinkle can have her NEA grant but political speech, journalism etc. is curtailed. Certainly, as a cultural issue this is even truer than in terms of strict prosecution by the state for speech deemed troublesome. The state seems much more apt to hassle someone over being politically active as opposed to merely scatalogical. You seem to be arguing that if we design policy to protect “those society despises” then the (for lack of a better word) bourgeoisie will be protected as well.

        I don’t think it will work out the way you believe. I would bet that if we did implement changes that gave further legitimacy to due process protections for the indigent while allowing prosecutorial discretion and government expansion that will target the great middle of America we will end up as both a cultural – and therefor political and legal matter with a much more authoritarian state and worse due process protection for everyone. For example, It will be normative and acceptable for the government to use administrative bureaucracy to circumvent criminal justice protections.

        I think that you have it backwards. By protecting the Us we end up with what resources and political will we can muster to protect people in marginal circumstances.

        This is a pretty typical debate where people argue that something like Social Security needs to have general buy in because if we force the middle class into programs designed to protect the poor the programs will receive adequate funding and political support. I think this eventually just ends up with both poor and middle class people stuck in a crappy system.

        There is a lot of cliched rhetoric about how one can judge a society by how its treat its weaker members and there is something to this. I think that judging how the state treats its average middle class citizen is even more important. One way of re-stating your argument is that the state should treat “average” citizens like repeat offender members of the underclass. Somehow I expect that instead of the government treating the underclass like soccer moms – we will get everyone with a boot on their neck.

        1. Gideon Post author

          So your argument is that by protecting the average middle class, run-of-the-mill, non-controversial individual, we are ensuring that society will similarly protect the most reviled and hated?

          I think you need to re-examine that belief because it defies logic and history.

          1. Aaron W.

            Does it? What specific history or logical rule makes it less likely that having a government designed for the vast majority of people will also do good for those in need versus the opposite. Why do you think setting things up for the weakest among us will protect middle class interests? Pretending that everyone’s needs in society are the same seems illogical even. If it is appealing in an idealistic sense. What I take away from your argument is that you care about the weakest among us and assume the rest of society will be able to take care of themselves. I can point to things like our public education system that makes me think public policy doesn’t work as you say and that the unintended consequences of approaching our public intitutions with your assumptions can be disasterous. Please offer more than an assertion that I am wrong.

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  7. richard40

    This articles reply to Glenn Reynolds proposals is much better than others I have seen. At least you treat the proposals as serious, and object to or endorse them on logical grounds, instead of just putting out a bunch of sarcastic snarky insults. And some of your criticisms may well be correct, I hope Glenn takes this article seriously.

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