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The War On Prosecutors:  That's the title of a National Review article by John Jay College Professor Barry Latzer.  The piece focuses on the movement to elect progressive district attorneys in order to reduce so called "mass incarceration, citing a book by progressive NY Times writer Emily Bazelon "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration."  Latzer notes that prosecutors are not actually responsible for the increase in prison inmates over the 80s and 90s. High crime rates and public demands for tougher sentencing laws and more police were the main causes.  Also, the claims of over incarceration and harsh sentencing are overblown. Since the turn of the century incarceration rates have been steadily dropping and actual time served for even violent crimes averaged just 4.7 years in 2016.  Other progressives want to skip the election route and remove prosecutor discretion, placing that power with government agencies.  While these suggestions appear extreme, it should be noted that rich progressives have been putting big money into electing reformers to head District Attorneys offices around the country for several years.  In states like California and Washington, stripping discretion from prosecutors and placing it with a committee of political appointees could become fashionable.    

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It is interesting that seeking to elect Prosecutor's who have different views from the author or this blog is characterized as a "war" on prosecutors. It is more commonly known as democracy. I wonder if this blog would characterize the recall of Chief Justice Rose Bird as a war on judges?

The War on Prosecutors is the title of the National Review article. This blog did not write the title, we posted about the article. Should we not mention the title of articles that we are referencing in a post?

First, Bird was not recalled. She served out her full term, and the people declined to retain her for another term.

Second, neither the article nor the post is directly primarily at the election efforts that have "succeeded" in electing such embarrassments as Aramis Ayala and Kimberly Foxx. The more extreme and worrisome efforts are those that would remove the local control by the people that elections provide, either by appointing prosecutors or shackling their discretion.

Kent, apparently you and the author of the post disagree on what the focus of the article is. According to the second sentence of the post "The piece focuses on the movement to elect progressive district attorneys" so I think my confusion is understandable. The post appears to be approving of the article, and certainly does not distance itself from the sentiment that this exercise in democracy is a "war on prosecutors" so I don't think my conclusion of agreement with the sentiment was out of left field.

Fair enough. I read Latzer as more concerned about the anti-democratic proposals than the electoral efforts. But everyone can read the article for themselves.

Prosecution done by political appointees without any real local control (or transparency) seems to describe the federal quite well. Does the C&C team view federal prosecutions are worthy of far less respect than state ones? Do you think should states at least be able to block federal prosecution in high-profile local cases because state prosecutions are more democratic? Just curious about the reach of expressed disaffinity for an appointment approach.

There is no "team view." C&C bloggers generally express their individual opinions.

The federal-state separation of powers, properly applied, directs the state power to the kinds of crimes that affect people most directly in their daily lives, while federal power is directed to more distant objects. Local control is therefore more important in the state realm.

In any case, any argument about electing federal prosecutors is purely academic. The unitary executive is built into the federal constitution, which is extremely difficult to amend, and there is no chance of amending it on this point.

Regarding the "worthy of less respect" and "block" questions, I understand that you are a law professor and in the academic environment it is common to engage in Socratic questioning, even sometimes with outlandish questions. (I was a law student once, long ago.)

This is not a class, I am not your student, and I do not have time for this. The comments section is for comments. If you have a comment, please state your position in declarative sentences.

Fair enough, Kent, so here are a few declarative sentences: Anyone truly concerned about "appointed" prosecutors and "local control" should be troubled that the number of federal criminal cases commenced grew 50+% after 1986.

The average yearly federal caseload was roughly 40,000 cases (or less) for 50 year after Prohibition, and then has averaged 60,000+ in the last 30 years. Increases in crime might help explain the caseload increases in the 1980s and 1990s, but as crime started to decline, federal cases commenced continued to grow -- reaching a peak of nearly 80,000 in 2010 and 2010.

I do not think it misguided to assert this caseload growth reflects appointed federal prosecutors taking direction from government agencies in DC to go after more traditionally state/local offenders (particularly drug and gun offenders). And I think this is a big problem, and one that justifies all sorts of proposed reforms to shrink the size of the federal criminal justice system and its prisons.

I agree that overfederalization is an issue worthy of careful consideration, though I am not convinced that appointed v. elected prosecutors is the reason for the caseload growth. John Pfaff says state felony filings rose dramatically in the same period, and he claims that local election of prosecutors is the problem, not the solution. The two of you are on the same side of the so-called "reform" issue, yet you come to opposite conclusions on this point.

As for reforms, I do not think that shrinking the prison population should ever be the primary goal. If we need large prisons because we have a lot of evil people, then we need the prisons. If the goals of just deserts, incapacitation, and deterrence can be met with fewer or smaller prisons, then okay, save the money. But the size should be a side effect, not a goal.

Prof. Berman: “taking direction from government agencies in DC to go after
more traditionally state/local offenders …And I think this is a big problem”

According to the AP on 6/30/17, Chicago, for one, was longing for more federal prosecutors:

"[Adam] Collins said in an email that the mayor's office has for months said it would welcome additional federal support and that city police have made progress even "without any of the new resources from the federal government we requested."

The announcement came hours after President Donald Trump tweeted that he
was sending more "federal help" to the city.. Attorney General Jeff Sessions
later said he'd also send more federal prosecutors.
...

His tweet came ahead of an announcement by Chicago police and the
Bureau of Alcohol, Tobacco, Firearms and Explosives about the
Chicago Crime Gun Strike Force .. Chicago police
Superintendent Eddie Johnson said in a statement "we
are foundationally changing the way we fight crime in Chicago."

...
“Authorities say a growing partnership between federal law enforcement
and the Chicago Police Department already is paying off…


~ https://www.dailyherald.com/article/20170630/news/306309938

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