CBA Record March-April 2020

Some Thoughts on “Thoughts on Prosecutorial Power” By Richard A. Devine

P rosecutors are seen by some as champions of justice, keeping the community safe by holding crimi- nals accountable for their misdeeds. Others view prosecutors as seeking to secure con- victions at almost any cost. Whatever your view, almost everyone acknowledges that prosecutors have significant power. Emily Bazelon, a journalist, legal com- mentator, and author, analyzes the power of prosecutors and its impact on the criminal justice system in her recent book, Charged , Random House; First Edition (April 9, 2019). It would be fair to say that she believes prosecutors abuse their power all too often. In the Introduction, Bazelon writes that “American prosecutors have breathtaking power,” and “they have mostly used it to put more people in prison.” The solution Bazelon proposes for the too-powerful prosecutor is electing states attorneys who see “fairness as integral to public safety.” At the end of the book she offers a number of recommendations that, in her view, will bring about that fairness. To better understand her proposals pre- sented, we need to look at Bazelon’s argu- ments in the context of how the justice system functions. The Charging Power One of Bazelon’s main concerns is that prosecutors have too much power to decide what charges can be brought against an individual. Because many cases are resolved by a plea bargain, she believes this broad charging power can be a hammer in favor of the prosecutor, leading to pleas that are not justified by the evidence. Bazelon’s argument, as presented, raises concerns, but the author fails to present the full picture. In the first place, prosecutors can only bring charges for violations of criminal laws passed by a state legislature. For each charge a prosecutor must be prepared to

prosecutor in each jurisdiction. Pros- ecutors should not, of course, abuse their power, but the same would be true for anyone given that responsibility. Prison Overcrowding As Bazelon notes, there is a good deal of discussion these days about prison over- crowding. The U.S. has millions of people in federal and state custody, far surpassing most other countries in both number of inmates and per capita incarceration rates. Bazelon applauds the “reform” prosecutors who seek to reduce the prison popula- tion through bail reform and diversion programs. These are worthwhile programs but are hardly new. Many prosecutors have embraced and implemented diversion programs for years, especially in drug cases. There have also been special courts established for veterans and defendants with mental health issues. But, expansion of diversion models to felonies in general, as referenced by Bazelon, would concern many in law enforcement. Diversion may be appropriate for certain misdemeanor or non-violent felonies committed by first-

establish proof beyond a reasonable doubt. There are additional checks to protect against abuses of prosecutorial power. Any plea bargain requires the willing agreement of a defendant represented by counsel and approval by the trial judge. Bazelon does not see judges as strong guardians of defen- dants’ rights who will reject an unfair plea bargain. (pp. 134-135). But the power is there, and the most direct remedy is for judges to take their authority seriously and ensure that plea deals are supported by the facts and the law. Bazelon’s position also reduces defense attorneys to little more than bystanders in the justice process. In our adversarial system these lawyers have a critical role to play and are barred by ethical obliga- tions designed to ensure that they protect the rights of defendants. Most defense attorneys represent their clients with vigor. Some fail to do a good or even adequate job, but that is a human failing that will not be rectified by limiting the charging power of prosecutors. The bottom line is that someone must be responsible for bringing criminal charges. Historically that has been the

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