On Thursday, Scott and I attended a book discussion, signing and reception hosted by the Open Society Institute. The event featured Friend-of-Flex, Professor Angela J. Davis speaking about her new book, Arbitrary Justice: The Power of the American Prosecutor. In light of the Nifong imbroglio, the timing of her exposé is perfect.
As the former director of the esteemed DC Public Defender Service, Davis is a master player and observer of the vicious game that is the U.S. criminal justice system. By her own admission, she’s “obsessed with prosecutorial power.”
Her intent with Arbitrary Justice is to show how prosecutors have become the most powerful officials in the criminal justice system. In particular, Davis digs into the brutal arbitrariness of prosecutorial power and the utter lack of accountability for rampant prosecutorial misconduct.
The Nifongs, Davis insists, are common. The real story behind that case is that prosecutorial misconduct happens all the time and is rarely exposed. A disproportionate number of the victims are people of color; all of them lack the resources of the falsely-accused Duke lacrosse players.
Despite her intimate knowledge of the system, Davis seems stunningly devoid of cynicism and proposes practical prescriptions for change. She insists that folks who become prosecutors are not necessarily consciously racist or prone to evildoing. When she declared that her book wasn’t meant to be an attack on the prosecutorial profession, someone hilariously heckled, “I want my money back!”
Davis is correct: Prosecutors aren’t inherently bad; the system is bad. And bad outcomes thrive in any system where incentives are twisted. Such is today’s criminal justice system, which rewards prosecutors who win convictions more than those who competently administer justice for justice’s sake.
Davis identifies the major contributors to the system’s dysfunctions:
Mandatory Minimum Sentencing
While prosecutors’ plea bargain power has always provided them with lots of control over the outcome of criminal cases, their power to extract a plea — and thus avoid a trial — is intensified by the threat of mandatory minimum sentences.
Ironically, mandatory minimums were passed at the state and federal levels with the intent of eliminating sentencing disparities. The effect has been to shift the sentencing discretion to prosecutors without eliminating disparities.
Mandatory minimums have also been the driving force behind the exponential incarceration rates of the past two decades. The prosecutors haven’t gotten nastier; their plea extracting tools have become increasingly menacing.
A typical campaign for state attorney general involves a “tough on crime” Democrat facing off against a “tougher on crime” Republican. The electorate then votes based on their political affiliation.
Though these attorneys general are elected officials, few citizens know who they are or how they manage their offices. Moreover, because prosecutors have sole discretion over who gets charged and when, politically-motivated prosecutors frequently choose targets to enhance their political profiles rather than in the interest of justice.
Lack of Transparency & Accountability
Prosecutorial misconduct is widespread and unchecked. Davis notes that “Much of what passes for legal behavior might in fact be illegal, but because prosecutorial practices are so rarely challenged, it is difficult to define the universe of prosecutorial misconduct.”
Ken Armstrong and Maurice Possley, the authors of a 1999 study of prosecutorial accountability concluded:
“With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious cases…They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
“They do it to win. They do it because they won’t get punished.”
The problem, as one editorial described it, “would be like trying to count drivers who speed; the problem is larger than the number of tickets would indicate.” The problem is also difficult to quantify, because most of what the prosecutor does is behind closed doors. On the rare occasion when misconduct is discovered, judicial review is extremely limited.
“Of the eleven thousand cases of alleged prosecutorial misconduct examined by the Center for Public Integrity, the appellate courts reversed convictions, dismissed charges, or reduced sentences in just over two thousand. However, in these cases, most of the prosecutors suffered no consequences and were not held accountable or even reprimanded for their behavior.”
Davis also points to another mundane reason why prosecutors are rarely held to account: Few defenders are willing to “snitch” on a cheating prosecutor. Making nice with the prosecution is generally in their clients’ best interests. After all, it won’t be long before they have to beg the same prosecutor to cut a better deal for their client.
It doesn’t take a game theoretician with a PhD to appreciate how cheating would flourish in a criminal justice system where unscrupulous prosecutors are virtually immune from punishment and are rewarded with promotions and career advancement.
Reform, Davis insists, should at minimum, seek to eliminate the arbitrary exercise of prosecutorial discretion and establish incentives to strengthen the existing mechanisms of prosecutorial accountability. And she does the heavy lifting of proposing practical solutions. An essential part of her reform plan is to educate the public about the duties and conduct of their elected prosecutors.
It’s too bad that the public only seems to pay attention when their prosecutors falsely indict innocent rich white kids for raping a black woman. Then again, if this incident lights sparks of nationwide prosecutorial reform, please pass the lighter fluid.