More on the Charging Power

Sunday, April 15th, 2012

First from Glenn Reynolds, who throws out one proposal for reform:

That “absolute immunity,” by the way, is entirely a judicial creation and — except, I suppose for absolute judicial immunity — as overweening an example of “judicial activism” as you’ll ever find, though this is seldom noted. If such immunity is to exist, it should be legislatively arrived at, not the product of judicial fiat.

Personally, I think that overcharging should cost prosecutors something. How about this — the state is on the hook for a pro-rata share of defendant’s legal expenses based on the number of offenses charged, but not convicted. Charge with 20 crimes, convict on 2, you pay 90% of the defendant’s legal fees.

Or maybe it should be based on years: Charges adding up to a maximum penalty of 100 years; actual sentence, 1 year. Government pays 99%. What do you think? I think that we need more oversight of prosecutors, and since I have little faith that the legal establishment will provide it, I’m looking for structural ways to give them skin in the game.

I think defendants should definitely be reimbursed for legal fees any time they’re acquitted. Or to be honest, any time they’re charged and never convicted. They should probably be compensated for any time they spent in jail awaiting trial in those cases, too. They certainly should be compensated in cases where there’s both prosecutorial misconduct and there was never a conviction. As I understand it, that’s supposed to be how the federal system works, but it doesn’t usually happen that way.

Absolute Immunity is just insanity. And as Reynolds points out, we only have it by way of SCOTUS fiat, a point it was amusing to see former Bush Solicitor General Paul Clement make to Justices Roberts and Alito during oral arguments in the most recent immunity case. At the very least, prosecutors should be subject to civil suits when they actually break the law.

New York criminal defense attorney Scott Greenfield, who is probably one the few people more cynical about this stuff than I am, also weighs in with the gloomy but probably observation that even if some reform were to pass, it’s unlikely that it would be enforced. After detailing how the system is supposed to work in theory, Greenfield opines:

The problem with this very nice, very sanitary discussion is that the process doesn’t necessarily happen this way.  Radley attributes this to a need or a higher burden before subjecting a person to the rest of the ride (since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment).  I have little faith in amorphous legal standards to begin with, and am firmly of the view that all the players in the system can ignore a higher standard just as easily as it ignores a lower one.

Not that I have anything against a higher burden before subjecting a person to the nightmare of prosecution, but the fundamental problem with the system as it currently works is that it relies on each of the players faithfully performing the duties of their office.  Until that happens, and happens in every case, the system fails. No standard, no matter how clear or vague, high or low, is going to make a system work when those charged with protecting people from baseless prosecution close their eyes and pass their responsibility down the line.

I think he’s probably right. But if I may be so naive as to posit at least a flickering bright spot in all of this gloom, I do think public opinion on these issues is changing. The great work the Innocence Project is doing to shed light on the problems in the criminal justice system is having an impact. We’ve seen a few cases now where bad prosecutors have been voted out, or at least faced tough reelection challenges. In Colorado, two prosecutors who hid exculpatory evidence in an innocence case had actually gone on to become judges when voters recalled them in the 2010 election. So I think there’s merit in continuing to draw attention to these issues, and to highlight cases that illustrate where the system goes wrong.

But that’s kinda’ what I get paid to do. So grain of salt, and all of that.

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11 Responses to “More on the Charging Power”

  1. #1 |  John David Galt | 

    You’ve got some good ideas there, but you don’t go nearly far enough.

    I would say any time there is police action that causes injury or economic loss (say, the police search your office or home, tearing it all apart), they should automatically be liable for full restitution unless they convict you of a crime serious enough to justify that action.

    Likewise, if the police or prosecutors accuse you publicly of any crime, and as a result your boss fires you or your landlord evicts you, you should be entitled to damages for defamation. The government can and should keep the identities of accused persons top-secret until conviction; so long as they don’t, an accusation is as much of a punishment as a conviction, maybe more.

    And finally, if some malicious person (say, your angry soon-to-be-ex spouse) makes a false accusation, the law should not be treating the accusation as “privileged speech” — the accuser should be liable for full damages PLUS suffer all the consequences s/he tried to inflict on you. As it stands, the laws regarding domestic violence, rape, and child molestation have set standards of proof so ridiculously low that there is an epidemic of false accusations taking place. Indeed the authors of those bills belong in jail for violating their oaths of office.

    Finally, all defendants found innocent should have their lawyer bills paid by the state.

    In a really just world, we’d not only get all those reforms, but the officials who committed the abuses would have to pay the damages out of their own personal pockets (taxpayers don’t deserve to have to pay them). Maybe that’s too much to ask for. But at the very least, the damages should come directly out of the prosecutor’s or police department’s current budget — thus impairing their ability to repeat the outrage, and just maybe causing their chief to think about imposing some needed constraints on his subordinates.

  2. #2 |  Joe McGuckin | 

    While you’re reforming the judicial system, get rid of Acquitted Conduct sentencing also.

  3. #3 |  Len | 

    John David Galt, why make the state pay? Then it is only the taxpayers (you and me), why should not those responsible foot the bill? Some might argue this would lead to paralysis (not necessarily the worst thing), but I would argue that it would end the “just doing my job/ blindly following orders” crap.

    On that note…http://www.economicpolicyjournal.com/2012/04/david-friedman-and-murray-rothbard-on.html

  4. #4 |  Sevesteen | 

    I’ve always thought there should be a minimum ratio of charged crime and eventual conviction or plea bargain. If a prosecutor charges with second degree murder, the minimum plea or conviction should be for voluntary manslaughter–anything less should be an acquittal. If he charges someone with 30 counts of something, he should have to prove 15 of them for any to stick. Another possibility is the English system, where pleas only affect the sentence, and not the charges.

  5. #5 |  Burgers Allday | 

    I would like to see a national holiday for the late Captain Beefheart, like the way Lincoln and King got theirs.

  6. #6 |  fwb | 

    1) Eliminate the DA or elected prosecutor.
    2) Implement a random selection process of prosecutor and defender in EVERY case from among ALL practicing attorneys.
    3) All evidence should be evaluated by private forensic labs that are required to submit reports to both sides.
    4) ANY prosecutor found to have withheld evident losses job and license for life.
    5) ANY prosecutor who is involved in a case where the convicted is later exonerated is required to serve the same amount of time in prison as the person convicted.

    There is no such thing at the federal level as immunity. There is no grant to Congress to grant immunity. But then Congress only has the Constitutional authority to exact punishments for about 6 crimes. All the other federal crimes are not Constitutional. Don’t believe me. Go read your Constitution and explain WHY there are specific grants of punishment power if Congress has blanket authority to punish as they new seem to believe they do. And the Courts don’t have the legitimate authority to say Congress has any powers that are not explicitly granted. Grasp how our system was designed to work and you will understand.

  7. #7 |  fwb | 

    I left off:

    The Grand jury, the one that hands down the indictment, is SUPPOSED to be the first line of defense for the people. It is time to charge the GJs with the requirement that they are to REALLY evaluate the claim of the government.

    All too often government agents lie in order to get indictments. As a lawyer I know says, “In most locales, one can indict a ham sandwich for murder.” If that simple statement is not an indictment of our broken system, nothing is.

    I hope everyone here knows that in most states one has no self-incrimination protections from a Grand Jury. You cannot go before them and not answer questions.

  8. #8 |  David M. Nieporent | 

    “Personally, I think that overcharging should cost prosecutors something. How about this — the state is on the hook for a pro-rata share of defendant’s legal expenses based on the number of offenses charged, but not convicted. Charge with 20 crimes, convict on 2, you pay 90% of the defendant’s legal fees.”

    Note the shift here between “costing PROSECUTORS” something and “the STATE is on the hook.” While prosecutors are immune, police are not — but what difference does it make to police, since their bills are covered by the taxpayers anyway?

  9. #9 |  ConnGator | 

    How about a limitation on the number of “bad” cases a prosecutor can bring per year? So after, say, 10 cases have been thrown out he is no longer allowed to charge anyone for the rest of the calendar year.

    That should give an incentive to only bring cases that he is pretty sure he can win.

  10. #10 |  Peter | 

    Hammurabi solved this nearly four thousand years ago:

    “If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death”

  11. #11 |  Militant Libertarian » More on the Charging Power | 

    [...] Posted: April 23rd, 2012 by Militant Libertarian from The Agitator [...]

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