Prosecutorial Indiscretion

Whether it’s by way of charging authority, as under the pre-Booker Sentencing Guidelines, or plea bargaining policy, prosecutors want more than to merely charge a defendant.  They want to impose their ideal of justice, leaving as little discretion to the judge to go all soft and mushy as possible.  It may not be merely a lack of faith in judges to exact a sufficient punishment, but an exertion of power to prove who’s really in charge.

Via Turley, Bedford County, Pennsylvania, District Attorney Bill Higgins decided a little pre-plea shaming was just the ticket for Evelyn Border, 55 and her daughter, Tina Griekspoor, 35, who were charged with stealing a gift card from a 9 year old girl at her birthday party.  Now that’s pretty low, even though it’s unlikely that the amount of the theft would have reached Bernie Madoff proportions.

Border apparently wanted a plea deal that avoided jail.  Higgins apparently saw his opportunity.  If not jail, what they could he do to exact his pound of flesh?  Hey, what about some public humiliation! DA Higgins came up with an idea.  If only Border and her daughter were to stand outside the courthouse with a sign, then he would recommend a sentence of probation.  And so they did.

Tina Griekspoor, left, and her mother Evelyn Border

Some will see the “punishment” as fitting, serving not only the purpose of personal but general deterrence, as any good public shaming should.  But this isn’t punishment, in the sense that it was a sentence imposed by a judge for the offense for which they stood accused.  Rather, this is a condition of the prosecutor, imposed by unilateral fiat, in order to receive a sentence of probation. 

While it wasn’t outside the realm of possibility that they could have told Higgins to go screw himself, and placed themselves in the hands of the judge for the imposition of sentence despite the prosecutor’s recommendation, Border and Griekspoor wanted as much of a guaranteed sentence as possible, and obviously weren’t too keen on going to jail.  (Hint Ladies: This is the sort of thing to think about before stealing.)

Would a judge have imposed a sentence of public shaming and probation?  It’s happened, and usually been subject to harsh criticism.  There’s a reason why we no longer have stocks in the village square.  But Higgins can deflect criticism by claiming that Border and Griekspoor voluntarily agreed to do this, a disingenuous argument for sure but one that might fly if he leaves out the part about jail as the alternative.

The problem here is that a prosecutor used his discretionary authority as a weapon to impose his own brand of justice, in this case public humiliation, in advance of a sentence imposed by a court,  It should not be within the prosecutor’s power to ignore the legislative sentencing scheme and superimpose his own brand of justice, outside the system.  There’s no appeal from this “sentence” of public humiliation.  There’s no choice made by those elected to do so as to whether shaming is the way to teach lessons. 

This is one man’s personal vision of how best to teach a lesson, and regardless of how nasty it may be to steal from a 9 year old on her birthday, the choice doesn’t belong to DA Higgins. 


 

15 thoughts on “Prosecutorial Indiscretion

  1. Steve M

    Have you ever been to jail? Even for just processing time? (Which can take upwards of 12 hours) If not, then your indignation is misplaced.
    Jail is a terrible place. These women chose to humiliate themselves rather than be incarcerated with dignity because they know jail sucks. I’m sure these women were relieved that, having been caught red-handed, they were able to avoid jail time.
    Not everyone needs saving from themselves.

  2. Jdog

    The issue isn’t whether or not the two women were better of doing (or risking) jail time than accepting a deal where they trade off humiliation, instead; they may well have been, and they clearly made that choice.

    But the issue is whether or not the choice should have been offered in the first place.

    Let’s assume, just for purposes of argument (I don’t have any reason to believe that it’s true, and not just because of the utter lack of hotness of the women involved) the deal that they were offered was a bit of couch time with the prosecutor, in return for no jail time. I think most folks would say that, even if they honestly preferred a bit of bumping uglies to jail time, that’s not what the legal system gets to sentence them to, and that’s not okay.

    Either.

    I’m not at all sure that public humiliation isn’t a better way to punish and deter this sort of stuff; I’d be open to arguments, either way, myself. But those arguments should be made to the legislature, not coded around by some prosecutor deciding that he knows better what the law should be. There’s far too much freelancing on that sort of stuff as it is.

  3. SHG

    It always makes me snicker when you write “bumping uglies.”  I’m such a child.  And you beat me to the punch.

  4. JKB

    Well, obviously sex for leniency would be frowned upon due to the corruptive effects of personal gain by the prosecutor.

    But what if the Extra Prosecutorial Punishment was say a public caning or shaving of the women’s heads? Or perhaps a paddling like they used to give in school?

  5. SHG

    Sex was used an example, imperfect though it may be.  There is no room within our criminal justice scheme for EPP (I like that phrase, thanks).  Punishment is not the prosecutor’s to impose.  To recommend, yes, but use as an extrajudicial tool through the manipulation of lawful authority, no.  It doesn’t matter what the punishment may be, how reasonable others believe it to be, or how a defendant might prefer it to the punishment he fears he might otherwise receive.

  6. SHG
    My, my.  It looks like Jdog’s “bumping uglies” analogy wasn’t far off the mark.

    BEDFORD COUNTY, Pa. — WJAC News was alerted to this story by a phone call from a viewer. They alleged the Bedford County District Attorney Bill Higgins had engaged in a sexual relationship inside the courthouse. County commissioners confirm they are investigating the allegations. Meanwhile, the Attorney General’s Office and a judicial code of conduct board have all been put on alert.

    Attorney Higgins told WJAC that this is an unfortunate incident, but it is of a personal nature and he is working it out with his wife.

    Now where did I put that sign?

  7. Jerri Lynn Ward

    I don’t know. I kind of like the idea of stocks in the public square as punishment for the misconduct of prosecutors. The use of rotten vegetables and fruit along with the stocks appeals to me as well.

  8. Jameson Johnson

    Domino plea bargains are common in Arizona. In a recent case, the husband and wife both had to plead guilty in a tax case in order for the doctor (bread winner) to get a misdemeanor. The wife was far less culpable. The plea bargain is likely to be the cause of an acrimonious divorce.

  9. Jdog

    Well, yeah, but if he stands outside a courthouse with a sign reading “I bumped uglies with a hot babe in my office” people might think he was bragging.

  10. Ron Bellows

    Bedford is now known world-wide as a backward place, thanks to Bill Higgins, the self-righteous xxxx.

    If you find a 30 dollar gift card on a shelf somewhere, wouldn’t you be tempted to keep it? What did they know about a 9 year old’s birthday? All they saw was a gift card that seemed to belong to nobody. It could have been some sort of coupon, for all they knew.

    This is way over the top, the way some of our ‘patriotic fellow Americans’ obviously love it. Until it hits THEM, of course.

    Anyone with money and/or a better education and/or status would not have been given this option in the first place. The DA also committed a dicriminatory act, in my opinion. They should sue the xxxxx.

    These ladies dit not deserve this. It is shameful to Bedford and because of the world-wide press, shameful to America.

  11. jack

    Public Punishment Defendants May Have to Start Over ?

    I think the DA should be holding a sign..for his own mistakes! God bless these women..

  12. Ellie

    I am from Bedford County. I agree with public punishment but, while what these ladies did was ethically wrong, I believe that it had no place in the court system. I costs the tax payers a good bit of money just for the paperwork involved. More appropriately they should have been asked to hand over $30 and be done with it.
    This has not been the only case where public punishment was used in Bedford County. Another individual was charged with violating a PFA and his punishment was to publish a public apology with photo in our local paper. This was his 6th offense! He should have gone to jail, in my opinion. He, obviously has a problem.
    Bedford County Common Pleas Judge Daniel Howsare has expressed concern over public punishment and believes it is an illegal offense he could not impose.
    As for Bill Higgins “Sex in the Courthouse” issue, it was, unfortunately, not illegal. For those not in the know, Mr. Higgins and the woman involved had attended a Republican function. After the dinner, he took the woman to the courthouse. They had sex in the courthouse. The woman claimed rape. Bill Higgins claimed it was consensual. The incident was investigated by PA Attorney Tom Corbett (now running for Governor) and found innocent of criminal wrong-doing. I sincerely doubt Mr. Higgins will be re-elected and no doubt, these public punishments will come to an end with our next DA.

  13. Pachanga

    The DA in this case Bill Higgins was himself convicted of multiple counts of assault from Philadelphia county when he brutally attacked senior citizens in a drunken rampage. The fines he received from his convictions were recently turned over to collection because he can’t or won’t pay. Anyone else would have had their parole revoked for refusing to pay. A woman also accused Higgins of raping her after a Republican fundraiser. Higgins admitted having sex with the woman while his wife and 2 small children were at home waiting for him, but said that the victim wanted it. A Bedford County Commissioner signed a written affidavit that Higgins approached him about keeping the rape quiet and in return offered to do favors for the County commissioner. No charges were filed as the case was transferred to Tom Corbett, Pa Attorney General for review. Higgins was the political Point of contact for Corbett’s election in Bedford County and Higgins had given money to Corbett’s campaign as well. Corbett declined to pursue the rape case saying it is a he said/she said situation and you just can’t prove those cases. So much for justice in Pa.

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