[Editor’s note: this piece has been very difficult to write. I’ve been working on it for months, and have deliberated about publishing it at all; I think because the objective it advocates is so daunting. But I do think it goes to the heart of so much that is wrong with the justice system. I do not have hard data to support my position, and I doubt such data will ever exist, but I do have decades of study and careful observation. I only report what I observe. Please read it, and just think about it.]
This article will be both editorial and somewhat philosophical, at least to the extent that it expresses conclusions on my part, so please bear with me. But it does address an issue that I believe is one of the key flaws in the justice system – and one that seems to be universally overlooked, not recognized, or dismissed. My hypothesis is that having “prosecutor” be an elected political position has a very deleterious influence on their performance of that job, and that this circumstance is not merely a contributor, but a root cause contributor, to wrongful conviction. (Note: We are not considering federal prosecutors here, because they are not elected, and they need to be a whole separate subject.)
First, some personal background. I grew up in an intensely political family. I’ve seen politics at work “up close and personal.” My father was an elected official for over 30 years, until he retired. My mother was very active in both state and local politics, and had seriously considered running for Congress. We even used to have the Congressional Record delivered to our home. I have very clear memories of, as a youngster, being down in the basement stuffing “sample ballots” into envelopes for delivery to voters. My mother once told me about how intoxicating and addicting politics can be, and how easy it was to get caught up in it. And (in my opinion) this is not driven by an overwhelming and compelling desire to serve the public – it is driven by an overwhelming and compelling desire for power and personal gain. No politician would ever admit this – probably not even to themselves; but you just can’t convince me otherwise. My apologies to the politicians out there, but that’s how I see it. There may be some virtuous motives to start, but once you’re in it, you’re hooked. So what’s the point of all this? It’s that I have observed and learned throughout my life that political positions, by their very nature, create a set of pernicious personal motivations for the office holder that can be, and usually are, contrary to the intent and spirit of the office.
Prosecutors are political animals. They have to be. They hold elected political office, and run for office on a political party ticket. And, once elected, if they want to keep their job, they have to get re-elected. We all know that ‘Job 1‘ for any politician is to get re-elected. Despite all their protestations to the contrary, the constant specter of re-election must have to shade every decision they make. Prosecutors universally run for election on a platform of “tough on crime.” And how do you, as a prosecutor, demonstrate that you’re tough on crime? By getting lots and lots of convictions. In fact, it’s really the only way prosecutors are measured. They get no credit for deciding not to prosecute a case, or for losing a case. I even know of a prosecutor who’s decision to not prosecute a case got him voted out of office in the next election.
It’s common for the whole sad chain of events to begin with a faulty police investigation. Please see our previous posts on police tunnel vision here and here. This, in turn, leads to (grand jury) indictment, which then leads to (wrongful) conviction. We know that grand juries are a “set up” for the prosecutor. This quote from CNN legal analyst Mark O’Mara. “In a grand jury presentment, the standards of evidence are relaxed, and there are no defense attorneys to advocate for the accused. This means that prosecutors can, and often do, stack the evidence in favor of their case in order to ensure an indictment — often excluding details that would support the case for the accused.” If a prosecutor wants an indictment, he/she can get one. And once the prosecutor has an indictment, he/she’s locked in. They HAVE to win. Even though justice might have been well served, prosecutors get no credit when a defendant is found innocent at trial. In fact, it’s viewed as a failure. If you lose cases, the voters will think you’re incompetent, or not doing your job, and you won’t get re-elected, much less elected to a higher office. The incentive and motivation that’s built into the position is to win every case. This brings a “win at all cost” mentality to every case the prosecutor tries, and this absolutely trickles down to the prosecution staff. I’ve actually heard an assistant prosecutor say, “We will win at all cost.” But …. what if the defendant is actually innocent?
This “win at all cost” philosophy, coupled with the political need to build a record and appear infallible, can, and does, motivate unethical actions and behavior on the part of the prosecutors: withholding exculpatory evidence (Brady violation), badgering or threatening witnesses, using known perjurious testimony from snitches and informants, giving snitches sweetheart deals for their testimony, and stacking charges to coerce acceptance of a plea agreement. It also motivates behavior like keeping people who have been independently proven innocent in prison, because to admit that they’re actually innocent would be “inconvenient” for their career. I have to ask myself – why else would prosecutors viciously defend every conviction, no matter how wrongful it might be? Why would they doggedly deny DNA testing and access to evidence? You would think they don’t want to know the truth. Surely, someone acting as a “minister of justice” should want to know the truth all the time, no matter the circumstances.
And, of course the poster child for prosecutors who compromise ethics to get re-elected has to be Mike Nifong. Nifong was the Durham County, NC District Attorney who, faced with a tough re-election bid, prosecuted the now-infamous Duke lacrosse rape case in 2006. Nifong was ultimately disbarred, and even served jail time, albeit one day. Nifong’s misdeeds were exposed only because the defendants’ families had the necessary financial and legal resources (estimated at $3 million) to pursue the truth. The vast, vast majority of Americans would have merely wound up as another one of Nifong’s victims.
And judges (except for federal judges) are elected too. Retired Supreme Court Justice Sandra Day O’Connor has been strongly advocating to have judges appointed by an expert panel, based upon merit – rather than elected. Please see the Nov., 2009 Huffington Post article here.
I state this as an undeniable fact of human nature: give people power, and they will abuse it. The only question is to what degree, and that degree will depend upon the extent to which a person is subject to oversight and is accountable. Lord Acton wisely, and correctly, stated in 1887, “Power tends to corrupt, and absolute power corrupts absolutely.” I contend that prosecutors have the closest thing to absolute power of any elected official. In addition, they have essentially no oversight or accountability, and rarely, rarely face any sanctions for misconduct, so there is hardly any check on their power. And that abuse of power is invariably motivated by personal gain – status, position, money, image, reputation, and getting elected or re-elected. You see, here’s the thing – human nature is human nature. It always has been, and always will be, and we’re NOT going to be able to change it (at least not without evolving to some higher life form); so we’re stuck with that. And this power abuse problem applies not just to prosecutors, but also to police and judges. Industry (corporate America) has found a way to deal with the human frailties that can jeopardize achieving the desired result. It’s called PROCESS. [Please see our previous post on 6 Sigma here.] And please let us distinguish between a designed ‘process’ and blind ‘procedure,’ which is what rules the justice system today. Design the entire justice system process so that it minimizes the exposure to human error and the human temptations of self aggrandizement and less-than-ethically-driven self gain. And design in mechanisms for studying and understanding system failures (wrongful convictions) so as to make sure they are not repeated over and over again. Obviously, this design should NOT include exposing prosecutors to the seductive and pernicious motivations of elective office.
In Ohio (where I live) the statutory basis for “prosecutor” being an elected position is Ohio Revised Code 309.01. So, at least making a change such that prosecutor would not be an elected political position would not be as daunting as having to change the state constitution (I think), but it would require a major change to state law. There are lots of different ways that prosecutors could be selected without a political election, but I won’t attempt to go into that here. I have no delusions that this could ever happen in my lifetime, or even my grandchildren’s lifetime, but if you never plant the seed, the tree can never grow, and true justice should demand it.