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.