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Debating Prosecutorial Discretion with Conrad Black

...yes, that Conrad Black, of Black v. United States, the follow-up case to Skilling, in which the Supreme Court upheld, with important judicially imposed modifications, the Honest Services Statute, 18 USC 1346.

As you might expect, Mr. Black (or Lord Black) is none too happy with the criminal justice system in the United States.  What he and, to be honest, many others find so troubling is the extent of prosecutorial discretion, which he views as broad bordering on dictatorial. He made the case in his National Review article last year.

In today's debate, a teleforum sponsored by the Federalist Society, Mr. Black and I were joined by Prof. Ellen Podgor, an expert in white collar prosecutions who teaches at Stetson University College of Law.  Prof. Podgor seemed largely, although not in every respect, to agree with Mr. Black.

The entire debate will at some point be available on the Federalist Society's website.  For now, I can only post my opening statement, trying to carry the flag for the prosecution point of view.  In the era of the Holder Justice Department, this has its share of problems, but I gave it a go.
-- Prosecutors are not nearly as powerful or malevolent as they have been portrayed. Prosecutors don't convict and they don't sentence. Juries convict and judges sentence. 

It's true that, in the present day, the great majority of cases are resolved by plea bargains, but this central fact remains: Any felony defendant who wants a jury trial can get one, no questions asked. Twelve impartial citizens who presume him innocent stand between him and jail. The reason so many cases are resolved by plea bargains is simple, and it's not extortion. It's this: The defendant is guilty, the government has the evidence to prove it, he knows the government can prove it, and he can get a better deal by bargaining than by going to a trial at which the whole bloody mess will get spilled out in front of an increasingly appalled judge and jury.

-- That a very high percentage of defendants are convicted does not, contrary to Mr. Black's National Review article, suggest a "totalitarian system." To the exact contrary, they show that prosecutors select for indictment people who actually are guilty, which is what they should do. If there were a higher percentage of not guilty verdicts, the claim would just be spun in the opposite direction: It would be that the system has become a dragnet that forces legions of the innocent to bear the costs and stigma of a criminal accusation, only to be exonerated.

-- The claim that America is vastly over-incarcerated -- "incarceration nation," as it's often called -- is incorrect. We have a population of 315,000,000, while 2,750,000 are incarcerated in federal and state prisons and local and county jails. In other words, three quarters of one percent of the population is incarcerated, and ninety-nine and one quarter percent isn't. Whatever else this may be, "incarceration nation" it is not.

-- The claim of over-incarceration is mistaken not just for its significant exaggeration, but because it whistles past two enormously important facts. One I have mentioned -- that the only path to jail runs through the jury room, whenever that's what the accused demands. The other is that, unlike the impression you may have been given, prosecutors are, in fact, accountable, and not just to the judge, jury and state bar. Unlike the aristocracy, the so-called "prosecutocracy" is part of the elected branches of government. Federal prosecutors are appointed, but the vast majority of prosecutors, who operate at the state and local level, are voted in. That means they can be voted out. Their accountability is one election away.

-- The reason prosecutors aren't nearly as unpopular with the electorate as they are with, say, defense lawyers, is that prosecutors have been a central part of something else that hasn't been mentioned, that is, the massive decrease in crime in the last generation. Crime rates have fallen by 50%. Prosecution and imprisonment are obviously not the sole reason for the fact that we're so much safer than we were 20 years ago, but they are a big part of the reason. This is confirmed not just by studies, but by common sense: When you lock up the people who commit crime, you get less crime.

I might add that the criminal justice system's success in reducing crime means, not just that it's not "broken" -- which is what we so often hear --but that it is, quite to the contrary, probably the most successful social policy of its time. By contrast, the massively greater spending we've done on welfare and entitlement programs has brought us the largest number of people living below the poverty line since the poverty line was invented.

-- What the talk of constraining prosecutors utterly overlooks is trade-off's. What you gain by adding constraints on the prosecutor you lose by increasing the risk that the guilty will beat the rap and go forth to do it again. Example: We can certainly put a dent in the prosecutor's conviction rate if we require unanimous juries of 50 people instead of 12. But what this will mean is that factually guilty people will beat the rap. And what that means is that there will be more crime victims -- victims who deserve the law's protection certainly no less than their victimizers.

-- Finally, I want to take note of several particularly bold assertions in Mr. Black's article on the "prosecutocracy." The article states, and I quote, "Even leaving out the 15 percent or so of accused who are completely innocent, and the 50 percent or more of the rest who would not be convicted (or not so effortlessly) if real due process obtained, the sentences are extreme; and sentencing has been wrenched from the hands of judges and usurped by legislators..."

The article cites no sources for these eye-popping figures, and I have been unable to find any. I did look on the site of the Innocence Project, a group that is no friend of wide-ranging prosecutorial discretion. In the section on Frequently Asked Questions, the Innocence Project says that "the few studies that have been done estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent." That is a far cry from 15%.

The view that at least 50% of the others -- the guilty -- would not be convicted if we had "real due process" reveals a bizarre view of what constitutes "due process." If half of factually guilty people could not be convicted under the model of due process Mr. Black would prefer, then that model should be rejected out of hand. Process that is truly "due" reliably convicts guilty people; it does not left half of them off.

Finally, legislators did not and do not "wrench" sentencing from the hands of judges. Sentencing has always been a shared responsibility between the elected and judicial branches, with the legislature setting its broad parameters for maximum and minimum terms. When crime spiked in the 60's and 70's, legislatures wisely -- and, as we have seen, effectively -- tipped the balance away from unbridled judicial discretion to a more rules-oriented system. This introduction of the rule of law into sentencing was long overdue in its own right, and has helped produce a far safer country than what we had at the end of the 70's.   


Prosecutorial discretion:

Let's charge James Moore with felonies for beating cops' fists with his face and not charge Denver police officer Shawn Miller at all.

I don't know that we change the system, but there are a lot of problems with prosecutorial discretion, particularly in an age where there is an explosion of non malum in se crimes and the politicization of the prosecutorial function. (See, e.g., Tom DeLay).

I agreed in the debate with your point that the absence of mens rea in so many of these regulatory and environmental "crimes" makes me think that, if they are to be punished, it should be by civil, not criminal, action.

The problem with designing an alternative to the present system is just that -- what's the alternative? As I argued, it's a matter of trade-off's. Most of the alternatives proposed will hamper, to the public's detriment, the great majority of prosecutors of good faith and sound judgment and not just the minority who sully the profession.

The problem, of course, is that a prosecutor can easily become an instrument of tyranny. Shoot a bear to protect your family, Eric Holder's DOJ will hammer you. Film a cop, and some prosecutors will bring charges even where the statute allows the filming. Be a victim of police brutality, and some prosecutor might go all in to protect the cops by prosecuting you. No one thought that James Moore attacked the police, yet charges were pending against him for 2 years. That takes more than one rogue prosecutor. That takes an organization.

I take a back seat to no one when it comes to the punishment of criminals. I also love a free society. And where innocent Americans are subjected to bogus prosecutions, we all lose a bit of freedom.

I really don't know what the answer is---discretion is generally a good thing, but, as James Moore found out, it can be an instrument of tyranny.

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