Friday, July 27, 2007

Prosecutors with Absolute Power
Maimon Schwarzschild

Mark Steyn offers half a dozen reforms to improve the US justice system and rein in the stupendous powers of prosecutors - powers that are now all too easily abused:

1) An end to the near universal reliance on plea bargains

2) An end to the reliance on technical charges such as "mail fraud" and "wire fraud", whereby you're convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime.

3) An end to the process advantages American prosecutors have accumulated over the years - such as the ability to seize a defendant's funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and - after a response from the defence - last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.

4) An end to countless counts.

5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies.

6) An end to de facto double jeopardy.

Without some such reforms, there is very little to protect anyone against the malice of a D.A Nifong, or the self-righteous excess of a Patrick Fitzgerald or an Eliot Spitzer.

As Steyn says, "this system is blind drunk on its own power".

Read the whole thing.

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Maimon Schwarzschild


These are all fair points. I'm curious, however, how Steyn and other supporters of Bush would square these concerns with the claims to unchecked Executive power that have been made on behalf of this Administration.

I'm not interested in distinctions based on the text of the Constitution (since that's not the basis for Steyn's arguments anyway). I'd just like to know why Steyn isn't similarly concerned about the potential for abuse by an unchecked Executive branch.

Posted by: Tillman Fan | Jul 27, 2007 9:41:49 AM

This all sounds incredibly shortsighted to me. The vast majority of beneficiaries of this sort of "reform" will not be the occasional clean-cut victim of prosecutorial zealotry. Rather, these measures benefit *all* defendants, the vast majority of whom are very nasty people who are guilty of really awful things.

The Warren Court Revolution was based on precisely the same kind of generalized outrage against out-of-control law enforcement. The effects of *that* disarming of the criminal justice system were positively horrific, and even the massive crackdown on crime that began during the 1980s--and is still underway--has only partially undone the damage. I guess it's all such ancient history now, though, that nobody remembers what it was like...

Posted by: Dan Simon | Jul 27, 2007 12:02:03 PM

Dan, does it follow from your remark that, rather than making things easier for the defence, it would be wiser to make it easier to impeach abusive prosecutors?

Posted by: dearieme | Jul 27, 2007 4:04:06 PM

Slightly off point, but:

Aside from the RICO laws, are there any others whose acronyms are little better than an ethnic slur? (The name harkens back to Little Caesar, starring Edward G. Robinson.)

Posted by: enemyofthepeople | Jul 27, 2007 4:54:58 PM

Dearieme, I haven't thought about it much, but I generally do prefer democratic accountability over judicial or structural approaches to the problem of poorly performing government. Of course, democracy is a double-edged sword: in some jurisdictions--such as many big cities, possibly including Nifong's--democratic accountability is likely to pressure prosecutors to ignore rampant violent street crime and focus instead on the type of politically unpopular defendants whose prosecution Mark Steyn criticizes. On the other hand, such jurisdictions will at least have the power to change their priorities, and will in some sense get what they deserve if they don't.

Posted by: Dan Simon | Jul 28, 2007 8:12:54 AM