Sharing Views on Prosecutorial Reform

If you’ve read much of my stuff on this blog, you must know that prosecutors, as a group, are not my favorite people. I am a person driven by logic, fairness, reason, and justice. Given their position, I would expect prosecutors to be the same. After all, they’re supposed to be “ministers of justice,” but my observation is that it’s so often not the case. I will grant that because of the work that I do, I routinely have exposure to prosecutorial behavior that is less than ethical, is not in the interest of true justice, and is sometimes just criminal. And because they’re “prosecutors,” they get away with it. I do not believe that prosecutors are inherently evil and unethical people; but they are human beings, subject to all the same human frailties that we all are. In fact, I believe their behavior is exactly what you would expect, given the incentives built into the system and the power with which they are endowed. What the actual extent of this problem is I’m sure we’ll never know, but I do know that I see it routinely, and I can only report what I observe.

As background, it would be helpful for you to see our earlier post regarding prosecutorial misconduct from two years ago: Prosecutorial Misconduct – What’s to be Done? A Call to Action. And as an update to this article, the National Registry of Exonerations now totals 1,618 wrongful convictions overturned as of this writing, and 46% of those had “official misconduct” as a contributing factor.

I have been doing innocence work for only 7 years, but just in that time, I have seen case after case in which prosecutors withhold evidence, badger or threaten witnesses, make deals with snitches, stack charges to coerce a plea deal, refuse to allow DNA testing, and refuse to allow post-conviction access to evidence. And once the litigation has moved into post-conviction, prosecutors will, without exception, vigorously defend every conviction, no matter how wrongful they might be. I’ve worked 63 cases in eight different states and two foreign countries, and, on top of that, have knowledge of probably 100 other cases; and I find it’s the same all over. Have I seen some exceptions to this “rule?” Of course, but they’re not common. My belief is that this characterizes the preponderance of prosecutorial behaviors. I can only report what I observe, and clearly there is cause for change.

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 held accountable. Lord Acton wisely, and correctly, stated in 1887, “Power tends to corrupt, and absolute power corrupts absolutely.” I would submit 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 basically no check on their power. And that abuse of power is invariably motivated by some form of personal gain – status, position, money, image, reputation; and getting elected, re-elected, or elected to a higher office, or just “winning.” 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 into some higher life form); so we’re stuck with it. Additionally, both the politico-legal system and the position of prosecutor are structured so as to actually encourage abuse of power, and a “win at all cost” mentality.

Let’s look at some practical aspects of the problem.

First, how many prosecutors are there in the US?

1) According to the Bureau of Justice Statistics, in 2007, there were 2,330 state prosecutor’s offices in the US – some are quite large, and some are small. For example, Cook County, IL has 900 Assistant State’s Attorneys. In the county in which I live in Ohio, which is a fairly rural county adjacent to Cincinnati, there are 22 assistant prosecutors in addition to the elected prosecutor. If we assume that this county represents a reasonable nationwide average, then the number of state prosecutors in the US would be 53,590.

2) According to the US Justice Department, in 2011 there were 93 US Attorney’s in the US; each with as many as 350 Assistant US Attorneys. If we assume an average of half that number of assistants per office, there would be 16,275 federal prosecutors in the US.

3) So, a conservative estimate of the total number of prosecutors in the US would be approximately –

70,000

70,000 is a whole lot of people to expect, as a group, to spontaneously see the light, and willingly “convert” to a more enlightened philosophy of prosecution. There may be some that do, but the numbers that define the extent of the situation are just too overwhelming. Plus, all the incentives that are built into the system – the politics, self advancement, reputation, personal gain – encourage the “win at all cost” philosophy.

Second, the US justice system is, by design, adversarial.

This makes a trial what is called (in classical game theory) a “zero sum” game. There is a “winner” and a “loser.” One thing this unfortunately accomplishes is to place a premium on just “winning,” as opposed to achieving the most just outcome. Couple this with the fact that the prosecutor is politically elected, and wants to be re-elected, or elected to higher office. Everybody wants to vote for a winner, and nobody wants to vote for a loser. Consequently, prosecutors naturally adopt a “win at all cost” philosophy. Their political and personal fortunes depend on it. This same thinking applies to prosecutors when they defend previous (wrongful) convictions. If a prosecutor should have a major conviction overturned, for any reason, his/her opponent in the next election will be sure to make hay with that. Consequently, they lose sight of justice, and will work diligently to prevent a reversal of a conviction, regardless of the facts. (I will not, at least in this document, attempt to address the so-called “conviction integrity” units.)

Forty two years in corporate America has taught me that the culture of an organization drives from the top, so while there might be many more assistant prosecutors, who are not actually elected, they take their direction from the prosecutor who has been elected. I have actually heard an assistant prosecutor say, “We will win at all cost.” Prosecutors are trained to be adversarial. They expect to be adversarial, and that’s the way I believe they will react to any proposals to limit the substantial powers they currently enjoy.

Another thing I’ve learned from my experience in corporate America is that if you want to change the culture of an organization, you have to change the people. I have direct personal experience with this. Once a culture has been embedded, the existing players are just not going to willingly come around to a new way of doing things, and as stated above, 70,000 is a whole lot of people to have to “come around.” Prosecutors should not be politicians. They should be people operating from a fundamentally different credo of how justice needs to be administered.

[Side note. Federal prosecutors are not elected, but because of the nature of their position, they have even more unfettered power with even less exposure to consequences than state prosecutors. They are prime examples of “absolute power corrupts absolutely.” I strongly recommend Sydney Powell’s book, Licensed to Lie.]

While it would be the right thing to do, I have to accept that having non-politically-elected prosecutors is not going to happen at any point in the future that I can envision. This would require not only major statutory changes in every state, but also would require some apolitical system and mechanism for “appointing,” or otherwise selecting, prosecutors. Given this, and the fact that human nature is what it is, I don’t see that the prosecutorial community is going to, on its own, self-evolve into some higher prosecutorial state of being.

Until the day comes when . . . .

1) Prosecutors are held accountable for their misconduct, and face real sanctions and consequences – even including jail time…

2) Absolute prosecutorial immunity is taken away…

3) The rules of the justice system – charge stacking & plea bargains, grand juries, real Brady reform, prosecutors being sworn, witness coercion – are changed…

. . . . we’re going to be stuck swimming in the same old pot of soup.

In conclusion:

My view is that achieving substantive prosecutorial reform will require changing the rules by which prosecutors are selected, monitored, disciplined and sanctioned. This, of course, will require legislation, which will be profoundly daunting to accomplish in that the prosecutorial community holds great sway with the legislators, and they will fight fiercely to protect their power. To get a sense of this, one has but to look at the derisive and dismissive response by the National District Attorneys Association to the publication in 2009 of the National Academy of Sciences’ scathing report on the state of forensics in the US, Strengthening Forensic Science in the United States, calling into question the scientific validity of most of forensics today as we know it.

If any number of prosecutors can be “enlightened,” and subsequently modify their behavior, through positive engagement with their critics, that is a noble and worthy goal. However, my reasoned belief is that behavior modification for the vast majority of prosecutors will require the “stick” instead of the “carrot.”

Of course this begs the question, “How can we achieve legislation necessary to effect prosecutorial reform?” Let me cite a passage from the above-referenced “call to action” article:

“Before any reasonable progress can be made on the legislative front, where it must ultimately happen, the groundwork must be laid to bring legislators along to the position that they believe the situation requires remedy.  This will also require overcoming the undue influence prosecutors have with the legislative bodies.”

The article goes on to suggest that the best way to start laying the legislative groundwork is through the accumulation of hard data regarding prosecutorial misconduct, and by increasing public awareness of the problem. When their constituencies start hammering them with concerns backed by data, perhaps then we can get the attention of the legislators.

In closing, I’d like to suggest that a perfect place to start this legislative reformation would be to require all trial counsel – prosecution and defense – be sworn in at the beginning of every trial. Please see our previous post about this here.