At the New York Times, another in their tepid series of Room for Debate appears, stemming from Colorado Senior Judge John Kane’s  refusal to accept a plea bargain that included an appeal waiver.  The question posed was whether prosecutors have too much power.

Of the five “debaters,”  two lawprofs took the answer as a given,  one arguing that the cure is the elimination of mandatory minimums.  A  former prosecutor argued that prosecutors need power because, well, they just do, and some collateral damage has to happen if we expect them to clean up all the bad things criminals do.

Former criminal defense lawyer and federal judge. turned Harvard lawprof, Nancy Gertner, limits her thrust to appeal waivers, agreeing with Judge Kane that they shouldn’t be on the table, employing an odd economic theory approach to show it’s not really arm’s length negotiations. 

Former prosecutor and federal judge, turned Utah lawprof, Paul Cassel,  ignores the question entirely and harps on how prosecutors exercise their discretion to nullify federal law at the expense of crime victims, and how Congress should hold hearings whenever the DOJ doesn’t bring charges for the “ultimate accountability in the court of public opinion.”

And while the issue is significant, the dilemma real and the problem one that is confronted daily in every court in America, the New York Times has managed to reduce it to an abstraction, if not a tangent as participants huck their personal agendas without regard to its relation to the question posed. 

Notice anything missing from the “debate”?  That’s right. There’s no criminal defense lawyer.  The Times, like almost all media, adores official titles, whether professor, prosecutor or judge. Put a few official titles together and it’s a grand slam.  Criminal defense lawyer, sadly, is not a title. Lawyer is not a title. What could the people who actually deal with the reality of the subject have to add to the debate?

It’s not that worthwhile things weren’t written that reflected life in the trenches.   Rachel Barkow from NYU wrote:

By almost any measure, federal prosecutors wield too much power. Because many federal laws govern similar behavior and are written broadly, prosecutors commonly have multiple charges from which to choose. This means they typically have many sentencing ranges to choose from as well. Thus, they can – and do – threaten defendants who want to exercise their trial rights with charges that will carry longer sentences (sometimes decades longer) than the charges they will file if defendants plead guilty.

On average, federal defendants who refuse to waive their right to a jury trial receive a sentence three times longer than those who plead. And with the prevalence of mandatory minimum laws, a prosecutor’s charging decision often dictates a sentence that a judge is powerless to avoid. It is no wonder 97 percent of federal convictions are the result of guilty pleas.

Absolutely true.  Similarly,  Angela Davis of American University wrote:

Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those crucial decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges. When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers.

Equally problematic is the fact that the charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone. If a prosecutor treats two similarly situated defendants differently — charging one but not the other or offering a better plea offer to one — it is almost impossible to challenge such differential treatment. The lack of transparency in the prosecution function also leads to misconduct, like the failure to turn over exculpatory evidence — a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.

These are solid, strong points that need to be made. And yet, they remain a bit too sanitary to reflect the ugliness and nastiness of the system from the ground floor. 

The irony is that Judge Kane’s decision to refuse to approve of a plea bargain that included a waiver of appeal, aside from the conundrum caused by its practical application which was subsequently resolved when the plea was offered without the appeal waiver, was an act of revolution.  As Nancy Gertner wrote,

Procedural protections are inadequate; the playing field, unequal. Still, every appeals court has found appeal waivers to be constitutional. They did not have to; the Constitution, after all, doesn’t even mention plea bargaining. It is an issue of fairness. Rather than being protective of a defendant as they should, the appeals courts have permitted an already well-armed government to demand even more.

Yet, the pleas offered today will include the same waiver of appeal unless they happen to go before Judge Kane, because no other judge has yet adopted his position.  And the same is true of judges who sit quietly by as defendants are overcharged, or threatened with a superseding indictment if they don’t take the plea, or the defendant whose choice is to take thirty years instead of life after trial, when the evidence, if it wasn’t trumped up by lying cops, would justify only ten.

Do prosecutors wield too much power? There is no real question here to debate. We know why Congress criminalizes everything it can, and why it incorporates mandatory minimums so that there’s something new to offer every two years in a stump speech. 

Rather, the debate is why other judges don’t have the guts of a Judge Kane to say “enough” with the evisceration of rights in the quest to create the Utopian crimeless society. And after appeal waivers, how about lying agents and cheating prosecutors? 

Of course prosecutors have too much power, and power corrupts. This isn’t a new concept. Ironically, former prosecutor Samuel Buell, now lawprof at Duke, offers an honest defense of the prosecutor function, that collateral damage and abuse is inevitable if you want the government to take down the bad guys. You have to take the bad with the good if you want prosecutors to be effective.

But then, that’s why there are judges, to temper the bad and rein in the corrupting power.  What this debate shows, to the extent it shows anything, is that federal judges, save one old man in Colorado, have the ability to do something about a system gone insane, but lack the fortitude to make it happen.  They have power too.  And power still corrupts.