There’s been a lot written in recent months regarding the need to reform the criminal justice system and how best to do it. Far too little of it acknowledges the role that unaccountable and out of control prosecutors play in contributing to the system’s worst failures and abuses.
Prosecutors in the U.S. hold tremendous power. American law recognizes “prosecutorial discretion,” which grants government prosecutors unreviewable power to decide whether to bring criminal charges and what charges to bring. Supreme Court Justice Robert Jackson described the prosecutor as having “more control over life, liberty and reputation than any other person in America.” Their charging power, he said, is an “immense power to strike at citizens, not with mere individual strength, but with all the force of government itself.”
Yet for all the power they hold, prosecutors are largely shielded from any sort of accountability or oversight. Thanks to a sweeping judge-made law, prosecutors have absolute immunity from lawsuits arising from their official duties, no matter how egregious their conduct. This protection extends even to prosecutors who knowingly lie or pursue the innocent, manufacture evidence, or otherwise subvert the purpose of the criminal justice system.
John Thompson was weeks away from death row following not one but two separate wrongful convictions – for carjacking and murder – when after 18 years in prison his attorneys found evidence that cleared him. It was also evidence that prosecutors had known about for years. Yet in Connick v. Thompson, the Supreme Court dismissed his quest for justice and outrageously chose once again to insulate prosecutors from accountability. A few years prior during a similar case, Pottawattamie v. McGhee, Deputy Solicitor General Neal Katyal argued in defense of the government that there is no “free-standing due process right not to be framed.”
Any actual injury, the ridiculous government argument went, occurs when the jury convicts, not when the prosecutor manufactures evidence or knowingly presents a liar as a witness. When acting in their role of triers of cases, prosecutors should therefore be immune. Only had they passed off the same evidence to another prosecutor to use in trial could they be sued. As Justice Kennedy rightly asked in retort, “so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”
It is indeed, but thanks to the Court that’s exactly how it works today.
While they have absolutely immunity in their duty to try cases, when prosecutors act as investigators – such as by seeking to verify evidence brought by police – they are subject to the slightly less comprehensive protection of qualified immunity that is used for police. This perversely discourages prosecutors from seeking to confirm evidence they find questionable in order to avoid losing their absolute protection, and ensures that even those without malicious intent will be more likely to prosecute the innocent when they should have known better.
Malicious prosecutors aren’t hard to find, unfortunately. In Pottawattamie, for instance, the facts themselves were not in dispute. Two prosecutors worked with police to manufacture evidence against the primary suspects in the shooting of retired police captain. They were eventually freed after being sentenced to life without parole when exculpatory evidence pointing to another suspect was found to have been withheld from the defense. Although a settlement was reached that provided some compensation to the victims, it also let the Supreme Court dismiss the case without addressing its merits. Not that the subsequent decision in Connick gives much hope that they would have ruled favorably for accountability and due process and rolled by prosecutorial immunity.
Judge Alex Kozinski recently had enough with corruption and misconduct among California’s prosecutors and called out the Attorney General’s office in a hearing video that went public. When one of state Atty. Gen. Kamala Harris’ deputies argued before the U.S. 9th Circuit Court of Appeals to uphold the convictions against Johnny Baca after other courts had already determined that prosecutors presented false evidence in his original trial but upheld the verdicts anyway, Kozinski incredulously asked if he really wanted to defend a conviction “obtained by lying prosecutors.” The other judges piled on with increasingly hostile questions, and threatened to write a scathing report “naming names” if the AG continued to pursue the case.
The public embarrassment eventually led Harris, who is running for U.S. Senate, to drop opposition to Baca’s challenge, but the misbehaving prosecutors have not been disciplined. In fact, there are almost never any repercussions for such misconduct. According to a report by the Northern California Innocence Project, the state saw 707 cases over 11 years in which state courts found prosecutorial misconduct (with no doubt many more instances going undetected), but only 6 were disciplined, and 80% of convictions were upheld despite the discovery of government shenanigans.
It’s the same story nationwide. A 2003 study by the Center for Public Integrity looked at more than 11,000 cases involving misconduct since 1970. More than 2,000 saw convictions overturned by an appeals court, yet less than 50 resulted in any professional repercussions for the prosecutor. A 2010 USA Today investigation found 201 cases involving misconduct by federal prosecutors, but only one “was barred even temporarily from practicing law for misconduct.” In 2013 ProPublica looked at 30 cases of prosecutorial misconduct in New York, where again only one prosecutor was significantly disciplined.
Cases where misconduct is found represent only a tiny fraction of the overall problem. Many more incidents likely go undiscovered, and the power of prosecutors further impacts the criminal justice system in less obvious ways. The vast majority of cases – roughly 97 percent – never even make it to trial for prosecutors to have the chance to break the law. Rather, they are settled through use of plea bargains, which on the surface seem like a good system for taxpayers and justice. In practice, however, they provide prosecutors even greater power and tip the scales away from defendants as the Founders intended.
As the name says, plea bargains take justice out of the hands of a jury of peers and turn it into a bargain between accuser and accused. But bargains cannot be fair when one side holds all the power. Prosecutors can and often do threaten to bring additional and more significant charges against those who refuse to take a deal. The prospect of facing stiff penalties can even get the innocent to take a plea when they feel the system is stacked against them, which for the mostly poor defendants it usually is.
Aggressive prosecutors are also impacting the political arena. In Wisconsin, rogue Democratic District Attorney John Chisholm abused his office to terrorize and persecute supporters of Scott Walker’s union reforms through a secret and baseless “John Doe” investigation. Wisconsin law allows for proceedings that permit extensive investigations, needing only a judge’s rubber stamp instead of grand jury approval, while keeping the target’s identity secret (hence “John Doe”).
Chisholm, whose wife was a teachers’-union shop steward upset by Walker’s reforms, used such a proceeding to expand an old, small embezzlement claim against a known suspect (with witnesses willing to testify) into a multi-year witch hunt against prominent Walker supporters that included midnight home raids and threats to victims to keep their mouths shut or risk further prosecution. The case, ostensibly a campaign finance investigation, was really a war on conservative activists and an assault on the First Amendment.
Several years and many ruined lives later, the Wisconsin Supreme Court finally shut down the secret and unconstitutional persecution. In a scathing decision, the Court wrote that “It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.” It went on to praise the victims for fighting back against overwhelming odds: “It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.”
In another case with troubling implications for the First Amendment, a federal prosecutor tried to compel Reason to turn over the records of anonymous commenters who said mean things about a judge. In response to a story, one joked about taking judges like that out back to be shot, while another suggested a wood chipper in lieu of wasting a bullet. None of the comments, however tasteless, met the legal standard of a credible threat. The subpoena even covered obviously hyperbolic and harmless comments like, “I hope there is a special place in hell reserved for that horrible woman.” Even worse, it was quickly followed by an unconstitutional prior restraint on speech in the form of a gag order prohibiting Reason not only from discussing the case, but even from acknowledging the existence of the subpoena or the gag order itself.
Sadly, none of these abusive prosecutors are likely to be punished. In fact, such behavior is typically rewarded through promotion.
Even alluding to the need for accountability can send prosecutors into fits of rage. A South Carolina Supreme Court judge modestly noted at a state solicitors’ convention that prosecutors in the state had been “getting away with too much for too long,” and suggested exactly the kind of accountability needed nationwide: “The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example. The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction. Your bar licenses will be in jeopardy. We will take your license.”
But the suggestion that prosecutors not break the law apparently really pisses them off, and at least 13 of the 16 head prosecutors in the state’s 16 judicial districts, along with the South Carolina Attorney General, demanded in turn that the judge be recused from criminal cases. For wanting to stop prosecutors from engaging in illegal behavior. Let they disabuse anyone from the notion that these people can police themselves.
There are many great ideas being developed to reform the criminal justice system. If the presidential candidates and other interested parties are serious about righting the system, however, they will need to include in their scrutiny the role of powerful and unaccountable government prosecutors.
Brian Garst is an advocate for economic and individual liberty. He works as Director of Policy and Communications at the Center for Freedom & Prosperity, a free market think-tank dedicated to preserving tax competition. His writings have been published in major domestic and international papers, and he is a regular contributor for Cayman Financial Review. He also blogs at BrianGarst.com and you can find him on Twitter @BrianGarst.
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