FOR SHAME: THE PUBLIC HUMILIATION OF PROSECUTORS BY JUDGES TO CORRECT WRONGFUL CONVICTIONS

29 Geo. J. Legal Ethics 305 Georgetown Journal of Legal Ethics Spring, 2016

Lara Bazelon

ABSTRACT

Shaming sanctions have a long history in the United States. In the colonial era, judges routinely subjected criminal offenders to a variety of public humiliations that included branding and even maiming. These punishments were designed to exact retribution, deter future misdeeds, and to impress upon the offender the importance of adhering to community norms. Shaming sanctions largely disappeared in the early 1800s with the rise of the prison industrial complex, only to reappear in courtrooms across the country in the early 1990s, when trial judges began to demand that offenders write public apologies, mop streets they had desecrated, and wear signs proclaiming their offenses to the world.

Now, a new shame sanction is on the horizon with a wholly unexpected cast of characters. The shamers are federal appellate judges; the shamed are prosecutors who vigorously defend criminal convictions that are infected by state-sanctioned misconduct. At stake are the reputation of the prosecutor’s office and the outcome of the case. The federal judges have no legal means of granting relief because of a statute that bars overturning state court judgments except under the most extreme circumstances. Hands tied, the judges turn oral argument into a public theatre in which they deploy shaming sanctions against prosecutors in live-streaming video that is later posted to YouTube and watched by thousands if not tens of thousands of people. In these arguments, the judges use moral condemnation to attempt to persuade the prosecution that its position is morally abhorrent.

This Article explores the use of this new shaming sanction from an ethical and efficacy perspective, asking if it is a proper use of judicial authority and more practically, if it works. This Article draws three conclusions based on a small *306 sample of cases. First, that as judges grow more social-media savvy and video-streaming oral arguments becomes a more common practice, this shaming sanction will likely continue. Second, the efficacy of the sanction seems to turn, at least to some degree, on how many people are watching. When judicial condemnation becomes a matter of public knowledge, the prosecutor’s office is more likely to reconsider its position because of mounting political pressure and embarrassment. Finally, while shaming sanctions are not rooted in legal doctrine, there is nothing unethical about using them. To the contrary, this Article concludes that by shaming prosecutors in this particular case-specific way federal judges are carrying out their essential mandate: to protect the individual–however powerless and despised-against the abuse of authority by the State.

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5 responses to “FOR SHAME: THE PUBLIC HUMILIATION OF PROSECUTORS BY JUDGES TO CORRECT WRONGFUL CONVICTIONS

  1. Prosecutors responsible for wrongful convictions should be charged with a felony.

    Entrenched arrogance and abuse of power has contributed to the destruction tens of thousands of prisoners and millions of families for generations.

    They do not hesitate who they destroy in their race for political gain. Done without presumption of innocence or due process, and throw their narrative into the media.

    Politically-driven prosecutors make a mockery of America “land of the free” and “home of the brave”.

    Our true heroes are the innocent and exonerees, who survived decades on death row or in prison, who were sent there by their own government.

    There is no “shaming” for the arrogant and tyrants in power, who are rooted in the Salem Witch Hunt. It’s great that the federal district judges are finally speaking out for the public to understand the truth in a state-controlled system that is not seeking fair and equitable justice for its men, women and children.

    Folks, Who would you elect for your local prosecutor if YOUR life was in their hands? It’s time to think about it! Absolute power is unacceptable.
    ————
    “Comment on the Nature of the State of the (US) Justice System” by Phil Locke, WCB 5/13/16
    http://bit.ly/1YAfnvT

    “A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee” by Phil Locke | Wrongful Convictions Blog 10/1/15 http://bit.ly/1LncWdT

  2. Prosecutors responsible for wrongful convictions should be charged with a felony.

    Entrenched arrogance and abuse of power has contributed to the destruction of tens of thousands of wrongfully convicted and millions of families.

    Prosecutors do not hesitate to destroy anyone in their race for political gain, tossing out the U.S. Constitution, presumption of innocence and due process.

    Politically-driven prosecutors make a mockery of America “land of the free” and “home of the brave”.

    Our true heroes are the innocent and wrongfully convicted, and exonerees, who survived decades on death row or in prison who were sent there by their own government, and the lawyers who got them out.

    There is no “shaming” of narcissists, the arrogant and tyrants in “control”, who have entrenched power. But, it is great, that the federal district judges are finally speaking out so the public can better understand the truth in their state-controlled justice system.

    Folks, So, who would you elect for your local prosecutor if YOUR life was in their hands?

    “Comment on the Nature of the State of the (US) Justice System” by Phil Locke, WCB http://bit.ly/1YAfnvT

    “A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee” by Phil Locke | Wrongful Convictions Blog 10/1/15 http://bit.ly/1LncWdT

  3. It’s a very strange situation that federal judges have been rendered powerless to intervene even when they believe that an egregious miscarriage of justice has occurred. There is a petition here calling for this situation to be corrected : https://www.change.org/p/allow-federal-judges-to-reverse-wrongful-convictions-reform-the-aedpa

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