Prosecutors Gone Wild

Originally Posted At Strike the Root
By Jim Davies
April 30, 2012

[Author's Note: Readers who know someone working in a prosecutor's office might usefully refer him or her to this article. It's adapted from one of a series at the new web site, which aims to help government employees lead honest lives.]

Getting bad guys off the street is surely a good and noble objective, a vital task in a civilized society. So what can possibly be dishonest about working for a prosecutor?

Nothing here is meant to suggest that if you hold such a job, you're giving  it less than your best effort. Problems arise, though, if we consider the reasoning in this comparison with the Mafia; you are helping prosecute thieves, while being paid with stolen money! The fact that your employer has solemnly declared that theft to be non-theft (he calls it "tax" as if a change of name made any difference) has no effect at all on the morality of the matter--on its honesty.

However, that's only the start of the story. There's a great deal more dishonesty in a prosecutor's office, in which you are taking part.  Let's look at this in two stages: first, at the standard of honesty commonly followed according to the rules that exist, and secondly, let's assess whether those rules are themselves nearly honest enough for a just society.

1. The Existing System

The idea of today's justice is that behavior must conform to laws, and that punishment will follow any breach of those laws. It's a system of retribution, not restitution. Your work is to help bring the right people to court, where their guilt is determined and punishment ordered. Nobody expects you or your boss to be infallible--that's why the court exists, and why the presumption of innocence is in place, and why your boss has the "burden of proof." But it certainly is expected that he will be honest, and never prosecute a person he believes to be innocent, just to add to his score of wins, nor conceal any evidence he found that would tend to exonerate the suspect.

As you know, that doesn't always happen.

Take a read of Wikipedia's account of the Innocence Project. The raw numbers of long-term prisoners who have been found innocent by DNA testing is not large, compared to the total--but each one of those 289 people so far represents a gross injustice. Some of them fell victim to over-zealous police, some to malicious or careless witnesses, some to juries eager to get home and watch TV. But some had their lives ruined because a prosecutor pressed his case harder than he knew he should have.

DNA testing can reverse convictions in only a few cases. Two million people are currently behind bars, and that technique cannot be applied to the vast majority of them. Yet some are perfectly innocent, and they are there because of a prosecutor's determination to win, supported by you or someone like you. Winning is, as you know, the name of the game; it advances careers, bloats budgets, boosts morale. And sometimes, a person is prosecuted because the case is winnable, rather than from a genuine belief in his guilt. For that dishonesty, a terrible price is paid.

Sometimes the media do a good job of exposing this kind of injustice, and "Dateline NBC" is prominent. A few days before this was written, for example, the program related the case of Nancy Smith, an Ohio mother who was prosecuted with Joseph Allen and convicted of child molestation. There was never a shred of truth in it. Plenty of blame can be spread around, but the prosecutor bears a heavy share--all the more so because, after a judge  reversed Smith's conviction following 14 years in prison, he appealed that decision, so as to get her back in prison rather than admit that a gross error had been made.  Is that "honest"? Silly question.

You'll know that plea bargains make up about 90% of a prosecutor's work today. This is because the lawmakers have drastically reduced the discretion open to judges to temper justice with mercy in sentencing; so if a case goes to trial and your boss wins, the judge has little flexibility to impose a heavy or a light sentence as he might prefer. So instead, your boss can re-introduce flexibility--too much, perhaps--by doing a deal instead. Plea bargains can also save a huge amount of time. One view maintains that if every case went to trial, the entire justice system would collapse, grossly overloaded.

This puts far too much responsibility on the prosecutor; he is in effect becoming jury and judge as well as advocate for a guilty verdict. He is neither trained nor paid for that, and the extra power he can wield provides huge temptations for abuse and corruption.
Take two alleged crimes, identical and with very similar bodies of evidence. Johnson is guilty and knows that if convicted, he will face 20 years in prison, so he takes the offered deal and serves five. Jameson is innocent and trusts the justice system to find him so; he turns down the plea deal but is found guilty, so he is caged for 20 years; the innocent man is punished four times more than the guilty one.

Or the converse can happen, as with Rudy van Lin in 1998. He sold an investment without a government license. He was a Dutch national, and did the selling on a Dutch cruise ship in international waters--yet he was charged with breaking an American law and advised that if found guilty, he could be in prison for 40 years. He was offered a deal: plead guilty, serve five. What a tough choice! He took the deal. Perfectly innocent (albeit mistaken; the investment turned out to be bogus, hence very damaging to all concerned including him), yet caged like an animal for all that time. Is that just? Is it honest? Yet this is the system you support, every day.

2. A Truly Just System

This would bear little resemblance to what prevails today even if the existing system functioned with perfect honesty. That's because real justice is not about crime and punishment at all, but about restoring damaged rights--about restitution, not retribution. Doe deliberately injures Roe; a just resolution of that is for the justice system to order Doe to compensate Roe, to the extent needed to repair all the damage--including his emotional distress and the costs of bringing the case. Government--a third party!--should not even enter the picture.

In such a system of real justice, there would not be "prosecutors" as such, at all. There would be attorneys available to represent the litigants for a fee, and in the Roe v. Doe case, the one representing Roe would have the burden of proving Doe's actions; but he would be paid initially by his client (or his client's insurer) rather than by an uninvolved third party such as government.  Justice would right the wrong. That's what justice is for. That's honest, and is the kind of justice system that will exist in the coming free society.  You are honest; so can it be right to spend your working days supporting a dishonest system?

Suppose in that environment that Mrs. Smith and Mr. Allen had been accused of molesting small children, and suppose that the (barely credible) testimonies had prevailed. The court would have ordered Smith and Allen to compensate the children, and possibly that they be watched and supervised (perhaps with electronic anklets) to make sure their future conduct endangered no others. Nobody would suffer imprisonment. Subsequently, new evidence would have emerged (as it did) and a new case would overturn the first one, requiring a reversal of the payments made; again, nobody would be caged. No system is infallible so that kind of error, and error correction, might still take place--but meanwhile nobody's liberty would have been savaged, as it was in today's system of alleged justice.

Yet today's is the environment you work in, the system you support. What does it do for your self-respect? Self-esteem is a vital part of life. We all need a purpose, a raison d'être, a way to feel pride in what we have been able to accomplish, a basis for ambition to achieve more in future.

Working for government undermines your basis for self-esteem. Make a clean break; offer your skills elsewhere. Get an honest job--even if at first you have to take a pay cut. You'll not regret it; at life's end you will look back in pride and pleasure, and be able to say, "I helped build that!"

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