When The Prosecutors Are The Thugs
We think we have a justice system, but what so often happens is that prosecutors extort guilty pleas -- sometimes from people who aren't the least bit guilty of what they're accused of. Prosecutors want the career-building win, so...whatever.
Tim Lynch writes at Reason about how plea bargains undermine justice:
By cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes.From a defendant's perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a "witness" who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a 10-year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, "The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused."
Sick, terrible, and not how we think this country works -- those of us who have not personally experienced this or known anyone who has. (More from Eugene Volokh on plea bargains here.)
On a related note, Karol Markowicz, writing at the New York Post, is right -- Patriots owner Robert Kraft's ordeal, in the wake of the prostitution bust, should alarm us all.
As is so often the case these days, prosecutors sounded the alarm about sex trafficking at the massage place where Kraft was arrested.
And as is so often the case these days (see Elizabeth Nolan Brown's reporting at Reason), there was actually no sex trafficking at all.
Markowicz explains:
Of course, when the police admitted months later that no human trafficking had occurred, it was too late. They had tied Kraft to the despicable crime of sex trafficking and then simply moved on. No corrections were issued on any of these stories.Having spread this vicious lie about Kraft, the state attorney moved on to other methods of torment. Because Kraft wouldn't admit his guilt, which could lead to repercussions from the NFL, the state attorney has moved to release the videos law enforcers allegedly took of Kraft at the massage parlor.
Why would prosecutors want to do that? A prominent criminal defense attorney in New York told me: "Arguably, the district attorney's announcement that it would release some of the Kraft tapes is rooted in gamesmanship. It's been well publicized that Kraft turned down the initial [plea] offer, and this is likely an effort to get him to agree to a disposition."
Kneel and confess guilt, or we will release embarrassing footage of you. That shouldn't be how our justice system operates.
Kraft's attorneys have, so far, successfully blocked the release. But on Friday, those attorneys said that the video had been leaked and was now being shopped around to various Web sites.
...This is now a story about a how the justice system has moved to humiliate and harm Kraft because he refuses to bow to their demands that he proclaim his guilt.
My hope -- perhaps futile -- is that Kraft, with his money and the legal power that it can buy, does something to set back this practice, this thuggery by people who are supposed to be in the business of getting justice.
As Lynch puts it at Reason:
The administration of justice ought to be a top priority of government.
Not playing a "cool" chess game with people's lives for the prosecutorial win.
People respond to incentives and opportunities. And when those are poorly setup for the police and prosecutors you get injustice quite easily. Why are trash bags in the US almost always opaque? The US drug war. With police departments getting a portion of what they take from drug dealers it is strongly in their interest to mark anyone and everyone a dealer. So a couple who's only crime was liking loose leaf tea had to fight off the justice department. As the officer put it 'It could have been drugs.'
The recent special prosecutor has shown the FBI is no different. A favored crime of theirs appears to be lying to the FBI. If you misremember something, get a date wrong, or name wrong, or even just view things differently from investigators you can get accused of lying to the FBI. There doesn't have to be any other crimes. That alone is enough. Then you add on the obvious political bias the FBI demonstrated between Clinton and Trump and a large portion of the US no longer views them as a legitimate law enforcement organization and instead as a corrupt gang.
The very dangerous part of this trend is cops, prosecutors, and judges are in the very vast minority of our population. There are roughly 500 people per officer. When the majority of people view the police and the courts as corrupt they will then take justice into their own hands. And there is nothing the police can do about that. There aren't enough of them to enforce order absent the agreement of the majority of citizens.
Ben at April 22, 2019 6:11 AM
Why would prosecutors want to do that?
To taint the jury pool? try the case in the court of the media?
I R A Darth Aggie at April 22, 2019 6:43 AM
As long as the prosecutor's office remains a stepping stone to political power, prosecutors will do what they have to do in order to amass a "winning record" and build a public image.
Conan the Grammarian at April 22, 2019 7:06 AM
"We think we have a justice system
I think no such thing. I think we are subjected to a government-controlled revenge/punishment "system". But that's not justice; quite the opposite.
Kent McManigal at April 22, 2019 8:19 AM
The public are not the Government's customers, we are their raw material.
iowaan at April 22, 2019 8:43 AM
It's much worse than that. If you have the audacity to plead innocent instead of taking the plea, the prosecutors will add extra charges.
For example, "Federal prosecutors added money laundering to the list of accusations against actress Lori Loughlin, her fashion designer husband, Mossimo Giannulli, and 14 other parents Tuesday in the college admissions bribery case, signaling an escalation against parents who are fighting the allegations instead of pleading guilty."
http://time.com/5566852/lori-loughlin-money-laundering-college-scandal/
If you read your local paper, you will see this all the time. A man was in pretrial jail for hitting a woman facing a one year sentence. He plead innocent and was suddenly facing a facing a 10 year sentence. After 2 months in jail, his lawyer finally gets the police to look at the 7/11 surveillance camera and he is released because he was clearly innocent. The man was very brave.
Curtis at April 22, 2019 9:40 AM
Police do this because it saves them so much work. Our county recently added a clause that if you fight a traffic ticket and lose, they add a court cost of $200 to the $140 (or whatever) ticket. I'm guessing their rate of appeals went way down.
A fundamental reality is that any system needs checks and balances. The economic system is balanced by competition: if you don't like Taco Bell you can go elsewhere. The political system is sort of balanced by elections. The police and DA? If it gets totally out of hand, maybe the feds or courts intervene. Who will intervene when the FBI loves to get you for "lying"? I certainly have trouble keeping past details straight--just ask my wife (or is it her that gets mixed up?). Most of Trump's associates who were indicted were found guilty of lying to the FBI.
cc at April 22, 2019 10:07 AM
And there's a texbook example of that kind of person:
https://i.imgur.com/56ZirA6.png
Sixclaws at April 22, 2019 10:18 AM
The Economist weighs in:
and goes on to quote Radley Balko:
The Prison Policy Initiative had this to say:
We've seen several prosecutors who used their office as a stepping stone - for good and bad - including, but not limited to:
As long as a law degree is a virtual necessity for a political career, we will see justice subordinated to ambition.
Conan the Grammarian at April 22, 2019 12:20 PM
"Federal prosecutors added money laundering..."
That's one of those charges, like obstruction of justice, that can be added on to absolutely anything. And yes, the idea is to send a message to defendants: "Either you play ball, or we bankrupt you with legal fees." I've been watching the Laughlin saga, and although I have no sympathy for her, it does anger me that they are doing this. Another practice is to charge a defendant with a raft of closely related charges in the hopes of getting a conviction on at least one; e.g., charging a murder defendant with murder, manslaughter, grossly negligent homicide, and violation of civil rights. They can convince the defendant that he is unlikely to be found innocent on all of these, and a guilty plea on any of them will result in a similar sentence no matter which one it is.
In the U.S. military justice system, this practice is called "piling on", and the regs specifically prohibit prosecutors from doing it. That's why you will see, in a court-martial, that the defendant is usually only facing one or two charges. Makes things a lot cleaner.
Cousin Dave at April 22, 2019 1:53 PM
Instapundit links to Carol's article, adds this
https://pjmedia.com/instapundit/328434/
I R A Darth Aggie at April 22, 2019 2:14 PM
And particularly with prosecutors, there's really no penalty at all for going too far to get a guilty verdict.
Hey, ho, qualified immunity has got to go.
I R A Darth Aggie at April 22, 2019 2:15 PM
"Our county recently added a clause that if you fight a traffic ticket and lose, they add a court cost of $200 to the $140 (or whatever) ticket. I'm guessing their rate of appeals went way down."
If you are a smart and corrupt local government, you can do what counties in GA do along I-95: force TWO trial appearances on the defendant. Few people have the spare time to make TWO trips to Darien, GA, so, after they are informed when they appear for the first trial that there is another mandated appearance, they give up.
As has been pointed out here before, cops and courts took more $$ from people than criminals did in the last few years.
Radwaste at April 22, 2019 3:25 PM
Lynch undermines his argument by insinuating that prosecutors regularly suborn perjury in their witnesses. That's not actually a typical motive for accepting a bad plea bargain.
The big problem is over-charging and the use of tactics that thwart an effective defense ( seizures, controlling evidence, issuing charges against the defense itself ). When you see that someone has pled down from potentially decades of incarceration to a few years, or probation with fines, it tells you that the prosecution had extorted a plea out of them.
But there is no reason for prosecutors to stop doing this, and too many incentives. It's going to have to come from judges and legislators.
matilda at April 22, 2019 4:20 PM
Court costs were the underlying cause of the Ferguson riots. The county was seeking to raise revenue and cracked down on traffic and vehicle code violations. Citizens were frustrated and angry at the police.
People not only had to miss work to fight a ticket, they had to pay hundreds in court costs even if they won. Most of the people in Ferguson were working class folks for whom those costs represented a significant dent in their family budget. To the county, however, those fees were the increased revenue it wanted.
Years ago, I received a traffic ticket while visiting my ailing father in North Carolina; in a mostly rural county. I read the fine print on the ticket and it turned out the fine was $75 and the court costs were over $100. If I contested the ticket and won, I would still be responsible for the court costs. Since I was living in California then, I simply paid the ticket and the court costs.
When I arrived in California in 1995, the fine for driving single in the HOV lane on 680 was just over $200. By the time I left, that fine had more than doubled and was almost $500 with attendant court costs.
Politicians, local and national, are treating their electorates like shopkeepers in a mob shakedown - and the enforcer in this shakedown is the justice system. Pay up or go to jail.
This is going to do to the country what it did to Ferguson - create ill-will and animosity between the public and its police.
Conan the Grammarian at April 22, 2019 4:42 PM
This is going to do to the country what it did to Ferguson - create ill-will and animosity between the public and its police.
Conan the Grammarian at April 22, 2019 4:42 PM
That train left the station a long time ago. Cops pick on people who are the least likely and able to challenge the ticket.
I resent the heck out of the fact that when I am in Colorado the cops target me for my out of state license plates, and when my son in law is in my home state he gets targeted for his.
I also hate lodging taxes which always seem to go for public boondoggles. Don’t like them when I am traveling and hate the fact that my home City imposes them on visitors as well.
One of the things I love about Japan is that the police aren’t revenue generators. Tickets are issued and blame is assigned at traffic accidents.
Isab at April 22, 2019 5:00 PM
When a gubmint insider sliiiides on over to a sleazy company for big money.
Mmmm. Corporate lawyer.
Gog_Magog_Carpet_Reclaimers at April 22, 2019 6:15 PM
"One of the things I love about Japan is that the police aren’t revenue generators."
That is at the heart of the matter for US police. Quite frankly justice and security are expenses. If you are making money at it you aren't any different from the mob. You can't be a profit center and execute justice at the same time.
As pointed out above, this issue extends all the way from rural traffic cops to the top of the FBI.
Ben at April 22, 2019 6:15 PM
"The public are not the Government's customers, we are their raw material."
Police have been compared to guard dogs protecting sheep. Remember, the sheepdog doesn't work for the sheep, he works for the shepherd, who only wants to reserve shearing and slaughtering for himself.
bw1 at April 22, 2019 7:15 PM
"Politicians, local and national, are treating their electorates like shopkeepers in a mob shakedown"
It's more like a farmer treats livestock. Mobsters don't carefully micromanage shops to maximize yield.
bw1 at April 22, 2019 7:18 PM
I can accept the analogy you are pushing Bw1, but in no way is government carefully micromanaging to maximize yield. Instead they are randomly pushing people around. I get that the technocrats want to think they are great scholars guiding the ignorant masses into a better tomorrow. And my 5 year old likes to pretend to be a fire fighter. Doesn't make any of it real. At least my 5 year old knows he is playing pretend.
Ben at April 23, 2019 6:37 AM
"but in no way is government carefully micromanaging to maximize yield."
Another thread at this blog discusses the Kelo mess. Eminent domain abuse is the epitome of the agricultural model of government. Governments using eminent domain for economic development are treating the people like cows to maximize milk production. You have property, and the government takes it from you and gives it to someone else who will use it in a way that generates more tax revenue. the same way the feed goes to the cows that produce the most milk and ones who produce less milk become hamburger.
The disconnect is your assumptions regarding what constitutes yield - you think I used the term to mean a better tomorrow for the masses/livestock, rather than more money/milk and power/wool for the politician/farmer.
Ask yourself, whose interests does the sheepdog serve?
bw1 at April 25, 2019 6:41 PM
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