<< Prosecution As Payback | Main | What's at the Bottom of the Perry Indictment? >>


Politics & Prosecution, a Toxic Brew

| 19 Comments
I was a federal prosecutor for 18 years under administrations of both parties (from William French Smith to Janet Reno).  Not once was I asked to participate in a case I had even slight reason to suspect was politically motivated. Apparently, times have changed.

Kent's most recent entry, and mine before it, discuss prosecutions in which the stench of politics is unmistakable.  The former is a federal case against a bond rating service, Standard & Poor's, which, much to the Administration's consternation, downgraded US sovereign debt when it became clear that the federal government was not going to take any serious steps to start to pay down, or even slightly curb the growth of, the largest national debt in the history of civilization. Runaway borrowing and debt has been a staple of Republican attacks on the Administration, which now apparently feels like S&P was giving aid and comfort to Obama's political opponents.

If there's a place in the US Attorneys Manual that authorizes prosecutions for that reason, I missed it.  Perhaps it's been added more recently.

The other case was brought by the same local Texas prosecutor's office that launched the "cutting edge" (to be charitable) campaign finance indictment against then-Congressman Tom DeLay.  Even liberals had some heartburn about that; it was well grounded heartburn, since the conviction, and the Rube Goldberg prosecution theory upon which it rested, did not survive even the first round in the state appellate courts.

We now see from that same district an indictment, this one against Gov. Rick Perry, for having the audacity to ask a convicted drunk-driving prosecutor to step aside and, when she did not, vetoing legislation that would have funded a part of her office.

I don't know whether the First Amendment or the separation-of-powers challenge to the indictment will be the primary basis for its dismissal, but I'll bet good money that this breathtakingly vindictive and concocted prosecution will never see a single juror impaneled.

I have been all over libertarians recently for their juvenile, unserious and sometimes dishonest arguments about the death penalty, plea bargaining and the rule of majoritarian law.  But cases like these show that libertarians have an important point: That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.

19 Comments

Nice to see you acknowledging here Bill that unchecked prosecutorial power -- which, I fear, is a much bigger problem in the federal system than in state systems due especially to some extreme mandatory minimum sentencing provisions -- is worrisome and that libertarians are wise to seek to thwart the risk of tyranny that this power can portend.

Given that you start this post by noting your history as a federal prosecutor, I am intrigued and curious what you make of the fact that the prosecutor in the Perry case is
Michael McCrum who, according to the press, "worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration." Do you think/fear McCrum might have seen federal prosecutorial power in more political terms than you during his decade as a federal prosecutor? Am I wrong to assume that the Perry indictment might be much more than a political stunt given McCrum's history as one of your colleagues?

Sadly political interference and political motives with prosecutorial decision making isn't new, as Alberto Gonzales and the participants in the Don Siegelman prosecution can tell you:

http://en.m.wikipedia.org/wiki/Dismissal_of_U.S._attorneys_controversy

http://www.huffingtonpost.com/bennett-l-gershman/why-is-don-siegelman_b_3094147.html

1. Any governmental power can abused. You didn't know this? Obama is fixing to abuse his big time, by granting thousands (your own estimate) of pardons to dealers in dangerous drugs in order to goose his political base.

My answer? Guess what: That's just too bad. The proper response is not to make everything subject to judicial review, as you want, but for the electorate to install better presidents.

You trust your pals in, or formerly in, black robes like Jack Weinstein, John Gleeson, Jack Camp, Alcee Hastings and lots more. I trust the electoral process, flawed though it is. You can have your group and I'll have mine.

2. "Given that you start this post by noting your history as a federal prosecutor, I am intrigued and curious what you make of the fact that the prosecutor in the Perry case is Michael McCrum who, according to the press, 'worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration.'

I don't make anything of it. AUSA'S are non-political hires (as you couldn't help knowing), and there are some bad apples who start off as AUSA'S, just as there are some bad apples who are defense lawyers, cops, judges, law professors, plumbers and everything else.

Why, oh why, do I have to tell you things you already know? Oh, wait. In order to curb your very unfortunate instinct to take a swipe at my career and, not to stop there, George H. W. Bush, a war hero and a gracious, honest man whom I will be proud to have served as Special White House Counsel until the day I croak.

3. "Am I wrong to assume that the Perry indictment might be much more than a political stunt given McCrum's history as one of your colleagues?"

You're wrong to toss a smear, you bet. You're much better being your analytical self, rather than trying to ape the bile-laden halfwits who occupy so much of your comments section.

1. Glad to see that you don't even attempt to deny that the Perry indictment is a Democratic political stunt and an abuse of power.

2. As to Siegelman, he was convicted by a jury, and five of the seven counts were affirmed on appeal. I'll bet you $100 here and now that this Perry indictment, by contrast, will never even make it to the jury.

Are we on?

Bill, I am not trying to take a swipe or smear anyone. Rather, I am trying to contextualize your strong charges, in two posts, against the work of McCrum, a former federal prosecutor who began his career as a federal prosecutor under a President you and I both admire.

Specifically, in a prior post you call the charges pursued by McCrum "probably the most exotic and preposterous felony charge [you]'ve ever seen." In this post, you call McCrum's work a "breathtakingly vindictive and concocted prosecution." It seems to me that you are the one so eager to take swipes and to smear the work of a prosecutor, and I am just trying to unpack the basis of your attack on the work of a former federal prosecutor.

It seems you are now calling McCrum a "bad apple," but what other than politics gives you the basis for making this charge? Moreover, I have seen a report that GOP Senators Cronyn and Hutchinson both backed McCrum to be a US Attorney.

Please understand that I am not defending this prosecution (nor attacking it) because I lack the needed knowledge of Texas law and the facts to come to my own judgment. But I surmise that it is you own politics leading you to jump to the conclusion that this is all political, whereas it is my own disaffinity for unchecked prosecutorial power that leads me to see this case as a high-profile example of what can happen when modern prosecutors have so little review and accountability for their decisions.

Doug,

"But I surmise that it is you own politics leading you to jump to the conclusion that this is all political..."

A bunch of people on the opposite side of the political fence have already called out this indictment as a charade.

http://www.businessinsider.com/liberals-criticize-rick-perry-indictment-2014-8

This is not really a close question. I don't know Texas law, just as you don't, but I'll bet you $100 here and now that this indictment never makes it to a jury.

Are we on?

I am with Professor Berman on this one. As for the nature of what may happen on appeal, there is a stark contrast between the result in cases where public officials are engaged in basic criminal dishonesty, like Governor Blagojevich for example, and those where the very existence of the criminal offense depends upon murkier political motives and considerations, as with Tom Delay or John Poindexter.

In the latter cases, unlike the former, the appellate judges tend to break down on political lines, which calls into question whether they should have been prosecuted in the first place. Governor Siegelman had the bad luck to draw a trial judge who was a GOP political operative and a panel consisting of hard right jurists: Edmondson, Tjoflat and Hill. He wouldn't have been able to convince 100 state AGs of both parties to sign in to an amicus supporting his appeal if the case hadn't smelled pretty badly. Perry, like Delay, will probably do better given the political composition of Texas' appellate judges.

In any event, I don't like prosecutions based on novel theories in political contexts. There are plenty of crimes that are clearly delineated by their destructive character, without stretching to cover essentially political decisions of which prosecutors may disapprove.

Doug --

To add to my prior response:

1. "... in a prior post you call the charges pursued by McCrum 'probably the most exotic and preposterous felony charge [you]'ve ever se'n.' In this post, you call McCrum's work a 'breathtakingly vindictive and concocted prosecution.' It seems to me that you are the one so eager to take swipes and to smear the work of a prosecutor, and I am just trying to unpack the basis of your attack on the work of a former federal prosecutor."

Former federal prosecutor as of, what, 15 years ago? And, as you oddly neglect to mention, present high-profile defense lawyer, http://www.mccrumlegal.com/Profile/

So if, as you none-too-subtly suggest, his long-ago prosecution background makes him a reckless lawyer, why do you not at least equally suggest that his much more recent experience as a high-flying defense lawyer has the same effect?

As to why I view the indictment as unhinged (at best), I would refer, not only to the post I wrote, but to the views of a number of lawyers who are my political opposite, set forth in the Business Insider piece I linked in my previous comment.

2. "It seems you are now calling McCrum a 'bad apple,' but what other than politics gives you the basis for making this charge? "

That the indictment alleges conduct that is not a crime, as McCrum could not have helped knowing when he wrote it.

Your role reversal here is stunning. Time and again, you have raked prosecutors over the coals for behavior you acknowledge is legal, but is in your view too harsh. In this instance, however, you go agnostic on whether -- when the local prosecutor IS AN ADJUDICATED CRIMINAL WHO WENT TO JAIL, was aggressive and belligerent with the cops, and took no responsibility for her shocking conduct -- it's a felony for the governor to exercise his utterly routine and constitutionally-conferred power of vetoing the fat appropriations bill for her disgraced office.

One of your smarter commenters, "Daniel" -- a guy who's much more often in your corner than in mine -- summed it up beautifully: "The idea that there are [judicial] checks on a core executive power not only seriously undermines the separation of powers it also seriously undermines the electoral process. Frankly, it is the prosecutor [McCrum] who is abusing his discretion here, not the Governor."

3. "I have seen a report that GOP Senators Cronyn and Hutchinson both backed McCrum to be a US Attorney."

And does this make you wonder why McCrum wound up having to withdraw, even with the green light? Do you have some curiosity about that? Perhaps it was because he has a reputation as a firecracker who walks too close to the line, even if he avoided crossing it http://www.expressnews.com/news/local/article/DA-accuses-high-profile-attorney-of-wrongdoing-5129494.php

Bill, I am not reversing roles at all --- I am a consistent and persistent critic of unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion. The justifications for such criticism seem well founded in the on-going Texas two-step as we have (1) a local prosecutor who is an adjudicated criminal and yet still in power, and (2) a special prosecutor using his power to distract and derail a sitting Governor from doing his job.

In contrast, it seems you finally see through this ugly Texas case what I have long been preaching, namely that (1) we cannot reasonably expect and trust the political process to limit and respond to unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion, and (2) we may need, at least sometimes, to give judges at least a little authority to respond to misused of unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion.

I suspect McCrum IS a "firecracker who walks too close to the line," JUST LIKE, I FEAR, LOTS OF OTHER FOLKS WHO MAKE UP THE RANKS OF PROSECUTOR (AND JUDGES AND DEFENSE ATTORNEYS AND....). My persistent point is that, as the Framers stressed, men are not angles and our system should provide checks and balances. Legal requirements of transparency and appellate review (not to mention lots of other political process realities) provide checks and balances on judges, and I just want there to be similar checks and balances on prosecutors like McCrum and others who ma make a habit of walking too close to the line.

Please understand that I am not at all seeking to defend McCrum or this seemingly misguided prosecution. And I find truly disgusting and truly worrisome that a "convicted drunk-driving prosecutor" was able to stay in office after showing such blatant disregard for the law and the police.

I am, rather, trying to make a broader point given how quick and eager you are to highlight that this Texas case seems an example of prosecutors gone wild: I am hoping your strong feelings/beliefs with respect to this one case helps you better understand and appreciate just why I am a consistent and persistent critic of unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion.

Make sense? See the consistency? I hope so, and again please understand that none of my comments reflect a defense of any prosecutorial actions here but rather an effort to better understand why, in this setting but in so few others, Bill Otis is eager to attack prosecutorial actions rather than defend them.

Professor Berman,

Don't checks and balances on prosecutors (that are similar to those on judges) exist in the state and federal system?

What do you propose should be added to the checks and balances already in place to ensure that state and federal prosecutors don't cross an ethical/legal line?

I would favor, paul, requiring prosecutors being subject to requirements of explanation and review, upon request by the defendant, for major felony charging decisions (which could/would be comparable to the requirement of explanation and review for judges in most systems for major sentencing decisions). There are lots of ways this could functionally operate, but to keep it simple I would like to see defendants with a statutory right to:

1. Request from a prosecutor a short explanation for why he/she thinks a particular any charge carrying a significant prison term serves the public interest and is a reasonable use of taxpayer resources; and

2. Seek review of that charge/explanation by a panel of more senior prosecutors.

This Perry case is a good example of how such a requirement might (a) help reveal whether political motivations played some role in a controversial prosecutorial decision, and (b) allow some more senior prosecutors to consider (and perhaps reverse) a seemingly misguided prosecution before the defendant must incur all the expenses and uncertainty of mounting a defense to suspect charges.

In all likelihood, in 99.5% of all cases, the public interest in a charging decision would be so obvious, a defendant would be unlikely to even request any explanation or review. But, in those outlier cases of prosecutorial overreaching, there would be a helpful potential remedy via greater transparency and review.

Notably, these kinds of checks-and-balances already exist is the federal capital charging system (though they are not statutorily required), and I surmise that they are thought to serve the interests of US capital justice well. I would also like to see these tools apply to other serious criminal cases --- e.g., any case that involves mandated prison terms of 5 years or more.

Doug --

There are a number of serious problems with statute you propose.

First, it's flagrantly unconstitutional. As the Supreme Court has held, Armstrong v. United States, 517 US 456 (1996):

"A selective prosecution claim asks a court to exercise judicial power over a "special province" of the Executive. Heckler v. Chaney, 470 U.S. 821, 832 (1985). The Attorney General and United States Attorneys retain " `broad discretion' " to enforce the Nation's criminal laws. Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982))...In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)."

Your proposed statute would not even be limited to the very rare set of selective prosecution claims, but would extend much more broadly. You say it should extend to any felony charging decision. And these motions will not be rare. To the contrary, they'll be made in essentially every case for the same reason the usual raft of meritless defense motions are made: Because the taxpayer is footing the bill, the defendant has nothing to lose, and the defense lawyer wants to run the clock while tying up the prosecutor's time and showboating for the client.

Second and even worse, your proposed statute elevates the crook to the status of Grand Inquisitor, and the prosecutor to the humble supplicant begging the court's indulgence. It is exactly this attitude that feeds criminality: "I do what I want, and then everyone ELSE has to answer to me."

Third, there is zero chance the courts would follow the supposed limits of such a statute beyond its first day. The immediate challenge would be that simply having the prosecutor's buddies down the hall OK the indictment is a sham, and that due process requires that this decision by made by -- guess who now!!! -- Jack Weinstein, John Gleeson, Stevie Reinhardt or some other defense-lawyer-playing-judge.

And you would enthusiastically endorse such a challenge, not so? And the reason you would is that, having failed to get the SSA through Congress, you want to empower the judiciary to override the decisions of the executive branch. Not so?

I have a better suggestion. Rather than unconstitutional legislation, how about if these dopers change their behavior, quit trafficking poison, and get a normal job like everyone else? Is there something wrong with that?

I am all for "dopers" changing their behavior (or moving to jurisdictions or change which drugs they sell to the are involved in "normal jobs"), but I am not for your efforts to again change the subject from possible means to effectively regulate prosecutorial discretion.

Armstrong involved a common-law interpretation on whether discovery should be granted in a selective prosecution claim. It even recognized that it was statutory power granted by Congress that provides the basis for a presumption of regularity, and Congress thus would seem also to have the power to seek to regulate the exercise of prosecutorial power (and, to remedy your concerns, the statute might have an express provision that precludes judicial review of any decision made by prosecutors).

Notably, no federal judges to my knowledge has ever tried to assert that provisions of the USAM were judicially enforceable, and rightly so. Similarly, I do not believe that Tsanarev's lawyers are claiming that judges should question AG Holder's decision to seek the death penalty in the Boston Marathon bombing. Tellingly, rather than actually engage with the idea that it would be good to require prosecutors to explain how prosecutorial discretion gets exercised, you go on yet again about "defense-lawyer-playing-judge." And you do that while still encouraging and boldly predicting that judges should bounce the Perry indictment because ...?

Rather than raise incorrect and straw-man complaints about my proposal, I keep hoping you will address my points that drive this entire dialogue. Let me phrase them in the form of a question in the hope of getting a direct answer:

Do you agree that this ugly Texas demonstrates that:

(1) we cannot always reasonably expect and trust the political process to limit and respond to unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion, and

(2) we may need, at least sometimes, to give judges at least a little authority to respond to misuses of unlimited, hidden, unregulated and unreviewed prosecutorial power/discretion?

Thanks in advance for staying on topic to discuss the focal point of my reaction to the Perry indictment.

Professor Berman, if you don't mind, I will offer my answer to the two questions you posed to Bill.

(1) Too early to tell if the "political process" is powerless to constrain prosecutorial charging decisions like the "ugly Texas" indictment. (I believe that the "political process" can provide this protection in many cases by the electorate voting abhorent prosecutors out of office.)

(2) Judges (at the trial and appellate level) in many, if not all jurisdictions, already have the power to effectively respond to abusive prosecutorial tactics at the pre-trial and trial level.

There is no doubt that placing the charging function exclusively in the hands of prosecutors (a small minority of whom are political animals who are more concerned with winning their next election instead of seeing that Justice is done) gives them tremendous power to alter the lives of many people. But I believe that there adequate checks and balances in place to constrain the vast majority of abusive conduct. Will those checks and balances prevent 100% of prosecutorial overreach? Absolutely not. There will always be isolated cases (like the Texas case?) that don't even pass the smell test. But, just as there are no "perfect" trials, there is no "perfect" system to ensure that prosecutorial overreach never occurs.

In my opinion (having observed the "system" from the "inside" for over 30 years in several jurisdictions at the state and federal trial and appellate level), the present checks and balances are adequate to ensure that, in the end, Justice is done. (Some/many might even argue that the present system bends too far backwards to protect the rights of criminal defendants and the expense of Justice.)

Respectfully, your proposed statutory scheme to impose additional restraints on prosecutors (and provide additional broadly worded rights to criminal defendants) is, in my opinion, not necessary to ensure Justice in the overwhelming number of cases that state and federal prosecutors handle on a daily basis. And I don't believe that using the Texas "aberration" is a persuasive way of making your case.

Very sound and reasonable comments, paul, and I largely agree with your points (1) and (2), especially in state systems, and I also agree that "additional restraints on prosecutors [is] not necessary to ensure Justice in the overwhelming number of cases." But the federal system, which I know best, (a) does not give voters any chance to vote out prosecutors, and (b) gives judges no power to respond to prosecutors who can/do use mandatory minimum sentencing provisions to leverage pleas. That is my chief concern with misuse of prosecutorial power in the federal system, and that is why I support the JSVA, which would give judges one more tool to respond to prosecutorial overreach.

Your most enduring point is that nothing can be perfect, but that reality should not preclude efforts to make things better. And when evidence shows that federal drug and CP sentences are shaped far more by prosecutorial charging/bargaining choices than by underlying conduct, I think some minor reform could help in that regard. Minor reforms like the JSVA.

I agree that policy should not be driven by the Texas "aberration," but it is a good case to see if the political process or judicial review may do a better job of responding. In other settings, Bill says rely only on the political process and fear allowing any judicial review. In this setting, I am hoping he can see and acknowledge that the political process partly helped create the problem and that judicial review will likely provide the most efficient and effective remedy.

Finally, a lot of this turns on whether you think additional prosecutorial burdens/limits should (a) worry us because you think their jobs are hard enough already, or (b) be welcome because limiting state powers is always welcome. My libertarian instinct always lead me to answer (b) because I generally like to make the exercise of state power harder, even if it is hard already.

Doug --

Just let me chime in with a couple of things here:

1. It seems quite clear that the reason you want to shift sentencing power away from the elected branches and towards the unelected judicial branch is simple: You want lower sentences for drug dealers and, as witness the failure of the SSA and the JSVA to pass, you know you can get them from the Jack Weinstein's of the world but not from Congress. I honestly don't think there's a lot more to it than that.

2. I remain startled that you think it's wrong for prosecutors to charge defendants with what they actually did. I thought that was the definition of what a prosecutor SHOULD do.

3. You continue (albeit in gentler language than before) to accuse prosecutors of "leveraging" pleas without acknowledging that, in so doing, they are following settled Supreme Court law, Bordenkircher v. Hayes -- the case that dare not speak its name. Just as you seem unwilling to reconcile yourself to the defendant's loss in Raich, you seem similarly unwilling to do so with Bordenkircher.

4. As I've said many times, I dislike plea bargaining and would prefer that every defendant go to trial. But, as I'd bet plenty you know, if I became US Attorney and instituted such a policy, the defense bar would raise a cry that could be heard on Mars. The defense bar LIVES OFF plea bargaining. It would condemn a prosecutor who refused it as a Neanderthal thug.

5. You say that I "fear judicial review." That is just completely wrong. I MADE A LIVING OFF JUDICIAL REVIEW. I was chief of appeals in the USAO, remember? What I actually think is that judicial review is just fine, provided it's confined to the areas the Constitution allows, of which charging decisions are not one. I am also aware of judicial partisanship, carelessness, willfulness and (occasionally) outright corruption, none of which seem to bother you in your campaign to replace democratic blundering with robed blundering.

6. When Congress shifted power away from judges and toward the executive in the Sentencing Reform Act of 1984, it had an effect: It contributed to a massive decrease in crime. Libertarian instincts are fine, and I share many of them, but I would really prefer not to go back to the time when you could not walk four blocks in Georgetown after the Saturday night movie without seriously wondering whether you were going to get belted over the head with a tire iron and get your wallet stolen.

Bill,

1. You are so wrong to think this is only about drug sentences. Are you following the Yates case before SCOTUS? http://www.scotusblog.com/case-files/cases/yates-v-united-states/

Yates has everything to do with a federal prosecutors going too far and nothing to do with drugs. And I am hopeful that the Justices will tell the federal prosecutors in Yates they went to far, but I fear you believe that the problem must only be addressed by the "political process" and not the judiciary. Am I right in fearing that you want the Yates conviction upheld because you fear judges having authority to second-guess any prosecutorial charging decision?

2. When did I say it is wrong for a prosecutor to charge defendants for what they did? Perhaps I was unclear when asking you why you think the Perry prosecution is so obviously misguided given that the special prosecutor claims he is only charging Perry for what he did. I think a prosecutor should only charge defendants for what they do, but I also think the charges should be subject to some judicial review.

3+4. Bill, like many on the left, you seem eager to conflate what is unconstitutional and what makes for bad policy. I accept Raich and Bordenkircher as settled constitutional law and I do not make much of them because we are debating sound policy, not constitutional doctrine. I think federal involvement in lots of local matters is bad policy even though it been deemed constitutional. Like you, I think plea bargaining has lots of modern flaws even though it is constitutional. I hope I do not have to keep explaining to you that I do not talk about constitutional doctrines because that is not the subject of our debates.

5. I am not eager to see robed blundering replace democratic blundering, rather I am eager to see transparent and reviewable decision-making replace hidden and unreviewable decision-making. Do you disagree that requiring decisions to be transparent and reviewed helps to diminish the harms of "partisanship, carelessness, willfulness and (occasionally) outright corruption"? If you agree that transparency and review helps diminish these harms, why do you so strenuously resist any effort to bring these procedural value to bear in prosecutorial decision-making.

6. I have never advocated (and never will advocate) a return to a pre-SRA sentencing system. But, in part because we have the SRA, we need not (and I think should not) continue to rely on crude MMs which shift sentencing decision from being transparent and reviewable to being hidden and unreviewable in a number of setting. It is really that simple. I know you disagree, and that is fine. But do not continue to foolishly believe this is all about drug policy when it is much more about structural check and balances and limiting unregulated government powers.

Doug --

One thing I need to remember when talking with you is that I'm dealing with a much younger man whose energy exceeds mine. Still, I'll say a few things.

1. As to your first point, I stand corrected. You are not merely for lower drug sentences. You're for lower sentences across the board. Sometimes I forget that your eager campaigning for the SSA (which concerned drugs) was a second choice for you, and that your true heart-of-hearts desire was the JSVA, which would have unleashed Jack Weinstein & the boys on every crime in the book.

I haven't thought that much about Yates. If I'm remembering it correctly, I might have charged routine obstruction of justice and let it go at that. It's not the kind of case I would have had a whole lot of interest in when I was in the USAO.

2. "When did I say it is wrong for a prosecutor to charge defendants for what they did?"

When you go after prosecutors tooth-and-nail for doing just that, claiming that they're REALLY trying to rig the sentence.

I don't care what the Perry prosecutor claims. I can read the statute, and, as Eugene Volokh has pointed out, it does not criminalize Perry's behavior. And, if that were not enough, it's going to get tossed on separation-of-powers grounds; a court cannot call the governor to account for exercising a power given him under the state Constitution. You saw this quite clearly when you lauded the Mississippi Supreme Court for tossing out the challenges to Haley Barbour's pardons.

And I never said charges are subject to NO judicial review. For decades (at least), they have been subject to review for selective or vindictive motivation -- which is exactly what Perry's loony leftist enemies are up to.

3 & 4. What your side is trying to do here is browbeat the prosecution into forfeiting the victories it won in court. More importantly, much of constitutional adjudication behind those victories is woven PRECISELY from policy considerations. Both Bordenkircher and Raich are examples of this, as is, for example, Laffler. For good or ill, constitutional adjudication at the SCOTUS level has morphed into policy choices. Not so much my cup of tea, but I don't have a vote.

5. "Do you disagree that requiring decisions to be transparent and reviewed helps to diminish the harms of "partisanship, carelessness, willfulness and (occasionally) outright corruption"? If you agree that transparency and review helps diminish these harms, why do you so strenuously resist any effort to bring these procedural value to bear in prosecutorial decision-making."

I don't resist it. What I resist is giving that power to the least democratic branch, where it tends to get constitutionalized and thus harder to correct.

6. The problem is that the SRA was gutted in Booker. But the same reasons that Congress chose a determinate and (relatively) non-discretionary sentencing system are still there. It is for that reason (among others) that Congress -- even the hare-brained Senate -- refuses to dislodge the MM's that now have to suffice for what remains of the determinate sentencing system.

We saw for a full generation when I was in undergraduate and law school (twenty years of college down the drain, as Bluto would say) what discretionary sentencing did to the country. It was, to use a word you seem to like, an ugly picture. Crime was rampant and judges were unaccountable and arrogant. They asked for what they got, and the country is better off for it.

I understand that there are those who want to go back there, being of the view that criminals are victims and prosecutors are thugs. But it's not a view I share, or am likely to.

Bill, I plead guilty to the charge that I think judges should be in charge of final sentencing decisions rather than prosecutors, and thus I support the JSVA to that end. I object to laws that, practically speaking, put too much sentencing power in the hand of prosecutors without any checks or review. You do not, and that is fine, but that is why I accuse you of not being a real small-government guy because you are fine giving the executive branch this power without accountability or review. You are always quick to say the ends (crime control) justify the means (big gov power) --- but all fans of big government in all settings make the same assertion that the ends they like justify big government means.

Meanwhile, the SRA was not fully gutted by Booker and, notably, there are still lots of tough fraud sentences handed out without MMs in the mix. Rather, sentencing rules became standards, and most everyone involved thinks this system is working pretty well (and crime has kept going down a decade after Booker and after the FSA lowered crack sentences 4 years ago).

I am glad you support more transparency and review for prosecutorial decision-making. Had you turned that support into real programming while you were at DOJ, prehaps we would now have a better system and not need remedies like the JSVA

Leave a comment

Monthly Archives