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What Prison Reformers Miss

Federal legislation reducing sentences for non-violent offenses is well on its way to becoming one of the first major bipartisan domestic achievements of Barack Obama’s presidency, and similar measures are being tried in several states. But top-down policy changes—whether implemented from Washington D.C. or state capitols—may only go so far in reducing the prison population.

Much of the action on sentencing has to do with how individual prosecutors exercise their discretion. According to the prominent defense attorney Harvey Silverglate, the real culprit in over-incarceration is a draconian prosecutorial culture, so the types of macro-level policy changes currently being considered won’t have much of an effect. Silverglate writes in a recent Boston Public Radio op-ed:

It is sometimes said by us criminal defense lawyers – with a dose of cynicism – that in the halls of justice, justice is often done in the halls. What we mean by this tongue-in-cheek phrase is that the informal processes among prosecutors, lawyers, defendants and witnesses has more to do with whether true justice is rendered than any of the phenomena discussed by [at a recent White House panel]. By inviting only higher-ups to engage the President, [the moderator] limited the panel to discussions of macro policy and left out how those policies play out on the ground – particularly the ways that prosecutors routinely misuse their power. […]

The panel only briefly touched upon the toxic plea bargaining culture that has developed throughout the country. U.S. Attorney Walsh proposed that mandatory-minimum sentences be reserved only for the most violent offenders. But he failed to mention a practice that goes hand-in-hand with these sentences: government cooperation in exchange for lower sentences. Endowed with the immense power of imposing long prison sentences, a prosecutor can single-handedly get a defendant to say almost anything about almost anybody.

Silverglate’s observations are consistent with the views of Fordham Law professor John Pfaff, whom David Brooks interviewed for a New York Times column last month:

Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.

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  • gabrielsyme

    The biggest factor in prosecutorial excess is the internal culture of the prosecutorial world. The culture of prosecutors is completely different and much, much better in places like Canada and the U.K. There’s a big place for policy to clearly state the objectives and proper methods of prosecutors, but thorough reform will only happen when prosecutors are rewarded and respected within their profession for their restraint, moderation, and fair play as much or more than for obtaining long prison terms for the accused.

  • wigwag

    This post is exactly right, but the problem it points out is far worse at the federal level than the state level. Federal sentences are longer and there are few opportunities for release through parole.

    The single best thing we could do is cut the federal criminal system down to size and return criminal justice to the venue it really belongs in, the state criminal justice systems. If we have to wait for Congress to pass new criminal statutes with reduced sentences, it will never happen; Congress is barely able to agree on attaching honorary names to the nation’s post offices. But there are things that could be done faster.

    1) Too many U.S. Attorneys are grandstanding political monsters; Preet Bharara comes to mind as does one of his repugnant predecessors, Rudolph Guiliani. The same thing could be said about Patrick Fitzgerald and the incredibly corrupt Chris Christie. They’re always showboating because they see their Justice Department positions as a free ride to elective office. Limit the terms of all U.S. Attorneys to a maximum of four years with no hope of reappointment. This should cut down on the grandstanding.

    2) The U.S. Justice Department is dramatically over staffed. Reduce the number of attorneys working at the a Justice Department by at least thirty three percent. This will cut down on the number of criminal cases the Justice Department can bring and will force more criminal cases to the venue where they belong, state courts.

    3) Federal Judges are overpaid, over pampered and underworked. Don’t listen to their constant harangues: what do they do all day long but sit on their fat tuchases and kvetch. Cut their pay if you can, cut the number of clerks and secretaries they employ if you can’t. One clerk should be enough for Federal District Judges, Circuit Court Judges and even Supreme Court Justices. Don’t let them all have secretaries and schedulers; three typists in a typing pool should be enough secretarial support for a nine member Supreme Court.

    4) Congress is constitutionally empowered to limit the jurisdiction of the Supreme Court and the lesser federal courts (which were created by Congress not the Constiution). Congress rarely if ever avails itself of this option; it should.

    5) Congress itself should stop making so many damn laws; the problems afflicting our country have nothing to do with the fact that we don’t have enough laws.

    The best and fastest way to cut the monster down to size is to starve it.

    • Federal prosecutors seem to wield way too much power, indeed, but I’m not so sure about federal judges being overpaid and underworked. It depends on the district, I guess. When Paul Cassell resigned as a federal judge in 2007 to join academia, he cited low pay as one reason. Devolving it to the states isn’t necessarily a great idea because some states are no less corrupt and the bond between the judiciary and the prosecutorial corps is even stronger down there than at the federal level.

      U.S. Attorneys and federal judges and justices are so cloistered, effete and out of touch that in general, they’re clueless about what the real world is like. How can they do their jobs properly when they don’t understand what life is like for those tegu [they?] lord over.

      I’m tempted to say the same about the academic economists in various high-level government positions, but somehow they have not yet managed to completely wreck the US economy.

      • Tom

        That is mostly because they don’t actually control the economy.

    • mdmusterstone

      Sweetly put WW but you missed one and that is over-charging
      i.e. you commit one act and have broken 20 laws. In the army that’s called “piling-on”
      and isn’t allowed. .

      • wigwag

        I actually missed a lot more than one. Here are a few more:

        1) Repeal 18 USC 1346, the honest services fraud provision. It’s impossible to interpret, it’s overly broad and it’s overused. When applied to Congress, the term “honest services” is an oxymoron anyway.

        2) Repeal 18 USC 1001 which makes it a crime to lie to federal agents. The statute is routinely used to entrap people who assume that it’s only lying under oath that’s prohibited. Think Martha Stewart and the absurd prosecution of her case. Prosecutors are generally (not always) lazy good for nothings. When their case falls apart, they do whatever they can to win a garbage charge. I sure felt safer when Martha Stewart was in jail, didn’t you? Government officials lie with impunity all the time. When that’s outlawed maybe lying to them can be outlawed. Until then, no dice.

        3) Prosecutors who commit serious misconduct should routinely be disbarred and in serious cases imprisoned themselves. Remember, the prosecutorial malfeasance in the Ted Stevens case actually killed the Senator. But for the misconduct, the charges against the Senator would have been dismissed, he would have been reelected and he wouldn’t have died in the plane crash that killed him. The prosecutorial team literally, if not legally, killed the guy. They got away with a slap on the wrist. It’s not right.

        4) Friends do things for friends. Prosecutors need to get that through their thick heads (and they are usually preternaturally thick). Not every little bit of help rises to the level of bribery or corruption. Love them or hate them, the charges against Senator Stevens and Senator Menendez are garbage. The charges against Menendez are almost certainly a political hit job by the Obama Justice Department.

        5) Convictions that are latter overturned for actual innocence should result in a loss of pension for the lead prosecutors involved with the case.

        The Federal Judiciary is out of control and so is the Justice Department. They need to be reined in and they need to develop an instinct towards modesty. They do a bad job serving Justice and a terrible job serving the American people.

        It pays to remember that it is moronic “tough on crime” Republicans who are mostly responsible for this mess.

        • mdmusterstone

          Mmm, you’re playing my tune. Here’s a few more.

          -Repeal the RICO laws which have been stretched out of
          recognition along with asset forfeiture.

          -No more plea bargaining.
          It has been completely misused.
          Yeah, the courts are going to get busier, find the money or be more
          discriminating with prosecution.

          -Many years ago in California
          it was proclaimed in the newspaper that the legislature had passed 1700 new
          motor vehicle laws that year, busy little bees that they are. This must have been in the early ’90s and I
          was shocked, shocked I say that we, so late in the last century, had still been
          doing 1700 things wrong on our highways and byways but had been saved from
          ourselves by those in Sacramento. So I propose every law should have a sunset
          clause and they can’t be reenacted en bloc. Maybe that will trim back some of this
          burdensome “help” from legislatures.

          – Everything is too punitive. You can’t know what laws have
          been passed, it’s a blizzard, and if you don’t have criminal intent when you
          break them you should not have your head cut off. . I
          got a DVD from the library and was told on the first screen that misuse could
          result in five years in prison and a quarter million in fines. What I wondered could I possible do with
          that plastic and it’s content that any reasonable person would think I should
          be punished to such a draconian degree?

          -I didn’t recall Stevens but I sure do Martha Stewart.

          -Lastly, for now anyway, anyone who proposes a
          “war” on anything domestic should have their face slapped until they
          come to their senses.

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