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Crime, plea bargains, and bad prosecutors
Topic Started: Mar 19 2014, 11:52 PM (57 Views)
Quasimodo

Quote:
 
http://www.usatoday.com/story/opinion/2014/03/19/law-enforcement-clue-jury-criminal-column/6490641/

Our criminal justice system has become a crime: Column

Glenn Harlan Reynolds
March 19, 2014
Prosecutors too often abuse unrestrained powers.

(snip)

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.

[What was Nifong trying to force, except plea bargains? And for a crime which never happened--but he had the power
to threaten innocent persons with 30 years behind bars, and nearly bring it off.]


The problem is that, although there's lots of due process at trial — right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases — there's basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to "get" people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.

(snip)

Instead, we have a criminal justice bureaucracy that assesses guilt and imposes penalties with only modest supervision from the judiciary, and with very little actual accountability. (When a South Carolina judge suggested earlier this year that prosecutors should follow the law, prosecutors revolted.)

In a recent Columbia Law Review essay, I suggest some remedies to this problem:

First, prosecutors should have "skin in the game" — if someone's charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we've seen little enough of that.)

Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is.

Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision.

And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

If our criminal justice system is to be a true justice system, then due process must attach at all stages. Right now, prosecutors run riot. That needs to change.


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