Prosecutors…the Gatekeepers

gatekeepersToday’s post is all about the persecutors prosecutors and how they love mandatory sentencing since it transfers all the power from the judiciary (that deliberate in open court) to them (so they can threaten people in the dark).

We can change this bad paradigm, however, it WILL TAKE ALL OF US TO DO IT!

The Nation’s Shame: The Injustice of Mandatory Minimums
For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars.
Andrea Jones, Rolling Stone, October 7, 2014

“… Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors. Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while Osler says, prosecutors gained “a big hammer. The easy way of doing things is to threaten people with a lot of time, and then plead them out,” he says. “But easy and justice don’t go together very well.” …”


Sad truth is our prosecutors don’t always wear white hats
David T. Johnson, Star Advertiser, Jan 12, 2014

“As noted in a recent white paper by the Center for Prosecutor Integrity, American prosecutors frequently:

» Charge suspects with more offenses than is warranted;

» Deliberately mishandle, mistreat or destroy evidence;

» Allow witnesses they know or should know are not truthful to testify;

» Pressure defense witnesses not to testify;

» Rely on fraudulent forensic experts;

» Overstate the strength of evidence during plea negotiations;

» Make statements to the media designed to arouse public prejudice;

» Make misleading and improper statements to the jury;

» Fail to report prosecutor misconduct when it is discovered.


A national survey conducted in 2013 found that 43 percent of respondents believe prosecutor misconduct is widespread in the United States, and 72 percent believe new laws are needed to curb it. I am not sanguine about the possibility of “new laws” being enacted to hold prosecutors accountable for how they exercise their vast powers, because most lawmakers in Hawaii and other states lack the political courage to challenge the widespread assumption that prosecutors wear white hats.”


The kings of the courtroom
How prosecutors came to dominate the criminal-justice system
Economist, Oct. 4, 2014

“…It is not unusual for a co-operator to have 15 or 20 long meetings with agents and prosecutors. It is hard to know what goes on in these sessions because they are not recorded. Participants take notes but do not have to write down everything that is said; nor do they have to share all their notes with the defence. The time that co-operators and their handlers spend alone is a “black hole”, says a prosecutor quoted in “Snitch: Informants, Cooperators and the Corruption of Justice”, by Ethan Brown.


“It is not clear how often prosecutors themselves break the rules. According to a report by the Project on Government Oversight, an investigative outfit, compiled from data obtained from freedom of information requests, an internal-affairs office at the Department of Justice identified more than 650 instances of prosecutors violating the profession’s rules and ethical standards between 2002 and 2013. More than 400 of these were “at the more severe end of the scale”. The Justice Department argues that this level of misconduct is modest given the thousands of cases it handles.


“Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it. …”


US: Forced Guilty Pleas in Drug Cases
Threat of Draconian Sentences Means Few Willing to Risk Trial
Human Rights Watch, Dec. 5, 2013

Human Rights Watch Report: An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty


“…Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences. When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences. They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment. …”


A plea for change
American prosecutors have too much power. Hand some of it to judges
Economist, Oct 4, 2014

“… Prosecutors hold all the cards. If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine. With so much at stake, snitches sometimes tell prosecutors what they want to hear. One study found that nearly half of the cases in which people have been wrongfully sentenced to death hinged on false testimony by informants, typically criminals who were rewarded with lighter punishments.


“Eric Holder, the attorney-general, who announced his retirement on September 25th (see article), has urged federal prosecutors not to seek such harsh sentences in some drug cases. But only some; and state prosecutors are still free to threaten defendants with terrifying punishments if they fail to plead guilty or implicate others. A federal judge recently guessed that thousands of innocent Americans could be stuck behind bars because of coercive plea bargaining.

“Let judges judge

“Many other countries ban plea bargains or limit them stringently. Ideally America should ban them too. If it cannot face the thought, it should at least reform them. Mandatory minimum sentences should be scrapped, and judges should judge each case on its merits. Prosecutorial control over plea bargaining should be loosened, for instance by bringing in a magistrate judge who could take offers from both sides and act as adjudicator. This would make the negotiation more of a give-and-take, and could be used to shine light on a process that is currently as murky as it is inequitable. …”

Mahalo for caring about the quality of justice. PLEASE HELP US ELIMINATE MANDATORY SENTENCING FOR DRUG CRIMES IN 2015.  WE CAN DO IT!!!




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