Pubdate: Mon, 24 Jul 2006
Source: Seattle Times (WA)
Copyright: 2006 Washington Post Writers Group
Contact:  http://www.seattletimes.com/
Details: http://www.mapinc.org/media/409
Author: Neal Peirce, Syndicated columnist
Note: Neal Peirce's column appears alternate Mondays on editorial 
pages of The Times.

WHO CHECKS THE PROSECUTORS?

With a recent uptick in crime, tough prosecutors who are ready to 
convict and imprison perpetrators are likely to be more popular than 
ever. But a warning flag is being hoisted by American University law 
professor Angela J. Davis, past director of the District of Columbia 
Public Defender Service.

Prosecutors, notes Davis, are "the most powerful officials in the 
criminal justice system" -- more so even than judges. Why? "The 
charging and plea-bargaining power they exercise almost predetermines 
the outcome of most criminal cases. Over 95 percent of all criminal 
cases are resolved by a guilty plea."

Consider a person arrested for having a quantity of drugs on them. 
Depending on the amount, the prosecutor can charge simple possession 
(a misdemeanor), or possession with intent to distribute (a felony 
that in most jurisdictions means a mandatory prison sentence). So 
it's the prosecutor, through his charge and plea-bargaining powers, 
who really decides prison time for the defendant, or not.

The most serious systemwide issue, argues Davis in her forthcoming 
book, "Arbitrary Justice: The Power of the American Prosecutor," 
isn't the isolated, fairly rare case of a prosecutor coercing 
witnesses, fabricating evidence or consciously targeting racial minorities.

Rather, it's the lack of controls on, or accountability for, the 
everyday decisions of prosecutors. Their legal responsibility isn't 
just to represent the state in seeking convictions; it's to pursue 
justice. But too often, Davis asserts, prosecutors exercise their 
discretion "haphazardly at worst and arbitrarily at best, resulting 
in inequitable treatment of both victims and defendants."

There's the "win-win-win" ethos in many prosecutors' offices -- 
elected prosecutors and their staffs out to show how tough they are 
on crime, or how eager to impose death penalties in heinous cases.

Views on class and race, even unconsciously, lead prosecutors to make 
shoot-from-the-hip decisions easily at odds with true justice, Davis 
asserts: "I saw it all the time in the D.C. system. A rich kid comes 
in (though few are arrested) with parents and family lawyer, 
explaining 'Little Johnny has a drug problem and let's put him in a 
program, not lock him up.' The prosecutor usually agrees. But a poor, 
black or Latino kid comes in on a parallel drug case, maybe with a 
public defender, and the prosecutor figures -- 'I can't let you back 
into the neighborhood; I'll send you to jail.' "

Davis also pinpoints how appointed U.S. attorneys, pursuing the 
country's "war on drugs," have focused relentlessly on convicting and 
incarcerating even small-time neighborhood drug dealers and their 
girlfriends and family members, especially from inner-city 
neighborhoods, even on the scantiest of evidence. Federal drug 
prosecutions tripled between 1981 and 1990.

Under our system, all officials wielding government power should be 
and are subject to checks -- but we've ended up, Davis asserts, 
"giving prosecutors a pass" -- no effective control by voters, 
legislatures or the judiciary itself.

The U.S. Supreme Court has severely circumscribed conditions under 
which prosecutors' judgment can be questioned at all, referring cases 
to states' attorney disciplinary authorities that are themselves 
known to be weak. From 1970 to the mid-1990s, one study found, there 
were only 44 cases nationwide in which prosecutors faced disciplinary 
hearings of misconduct; even then, a reprimand was generally the 
worst punishment.

So what's to be done? Prosecutors themselves have traditionally 
resisted oversight. The public has been inundated with television 
programming that justifies prosecutors going right up to the edge on 
ethics and the law to get the "bad guys." The American Bar 
Association publishes standards of behavior for prosecutors, but the 
strictures have no teeth -- they're just "aspirational," Davis notes.

Davis would have national, state and local bar associations conduct 
in-depth investigations to determine the adequacy of current 
prosecutorial misconduct controls, and possible reforms. She'd have 
bar associations set up state and/or local prosecution review boards 
- -- not only to receive specific complaints brought by the public, but 
to undertake random reviews of prosecutions and (with colleges and 
universities) launch surveys to reveal discriminatory practices by 
race or class.

The idea is that an outside eye could discourage arbitrary, 
hard-to-justify choices by prosecutors without chilling the 
essential, fair law enforcement we all depend on.

Against the formidable, entrenched power of today's 
federal-state-local prosecutorial systems, any prospect of 
significant culture reform seems remote. But if we're ever to dare a 
start, Davis offers a group of eminently reasonable first steps. 
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MAP posted-by: Richard Lake