The prosecutor has more control over life, liberty, and reputation than any other person in America.
Robert H. Jackson (1940)1
Jackson knew of what he spoke. A few months before his remarks on prosecutorial power, Jackson had become the U.S. attorney general, i.e., America’s chief prosecutor. Pause, as Jackson did, to consider what it means to prosecute a federal crime. Merely bringing charges can result in a defendant’s detention, financial ruin, and reputational collapse, all before a jury hears its first witness. The ensuing contest will hardly be equal, as the case caption attests: not Jackson v. Smith, one person pursuing another; but United States v. Smith, a nation against an individual. In the fight, the nation’s resources will be directed by a single prosecutor’s office, an entity whose charging discretion is virtually unlimited and whose accountability for misconduct is functionally nil. These unfettered powers are what prompted Jackson’s comment.
The safeguard against prosecutorial despotism, Jackson believed, was a special temperament—a temperament, Jackson suggested, not unlike that of a “gentleman”: dispassionate, reasonable, faithful to higher principles, and ruled by humility.2 Jackson embodied those qualities as attorney general and (on leave from the Supreme Court) as the most famous prosecutor in the world, the chief U.S. prosecutor at the Nuremberg Trials. But that’s the problem with enlightened despotism. Let the eyes unfocus, and the authoritarian field always reveals some encouraging example: a Frederick the Great, Lee Kuan Yew, or Robert Jackson. However, “enlightened” is the adjective and the exception. “Despotism” is the noun and the rule. The danger of power unaccountable, save to the consciences of the powerful, is precisely what law is supposed to avoid.
Jackson’s vision of the gentleman prosecutor now seems quaint. Whatever else ex-prosecutors like Rudy Giuliani and Chris Christie might be, “gentlemen” is not the first descriptor that leaps to mind. As a prosecutor, Giuliani once indicted a firm for financial and tax frauds, dispatching fifty armed marshals to raid the firm and seize its assets, a well-publicized act that condemned the business to death before a verdict was ever obtained. Giuliani eventually got his conviction, but only temporarily: the firm’s conviction was overturned; the IRS subsequently discovered that the firm’s tax error was overpayment; and various securities claims were vacated.3 (In later life, Giuliani’s blood-and-thunder instincts led him to opine that Darren Wilson should be “commended”; Wilson was the officer who shot Michael Brown in Ferguson, Missouri.4) Christie, meanwhile, had scandals simmering long before Bridgegate. In a prosecution for securities fraud, Christie’s office wangled a settlement (fair enough), and then directed $5 million of the proceeds not toward the Treasury or the shareholder-victims, but to Christie’s undistinguished alma mater—to endow a chair in, of all things, ethics.5 Eighty years on, Jackson’s musings about prosecutorial power ring true, as does his warning that lapses could make prosecutors “one of the worst” forces in society.6
Eighty years before, however, Jackson’s speech might have seemed bizarre. Hard-charging, all-powerful Giulianis and Christies did not yet exist. What prosecutors the nation employed were weak and few until the early twentieth century: under-resourced, undistinguished men who occupied the lower rungs of the legal hierarchy, frequent subjects of professional and public scorn. That changed, especially during Prohibition, but the transition to the all-powerful prosecutor was (by legal standards) swift, almost unexpected. Certainly, the public supported vigorous criminal enforcement, but no one ever quite agreed to grant prosecutors untrammeled authority. Rather, the all-powerful prosecutor arose by means haphazard and circumstantial, the by-product of changes elsewhere in the legal system, some of which were originally intended to curb law enforcement’s power. Because prosecutorial powers accumulated ad hoc, the norms, institutions, and expectations about prosecutors have never been settled, and because secrecy is among those powers, even the legal system itself does not fully appreciate the ways aggressive prosecutors can disserve their ostensible masters: justice and the public.
For most of Anglo-American legal history, prosecution was a private affair. Most crimes, like murder and assault, were seen as wrongs against individuals, not against society. While the state provided judges, and enumerated crimes and penalties, it otherwise stood aside: law made victims or their survivors responsible for apprehending criminals and bringing prosecutions. Only when government supposed itself to be directly wronged, in matters like treason and sedition, did officials prosecute.
The emphasis on private, rather than public, prosecution derived from British policies, whose stated concern was protecting liberty. Prevailing wisdom held that state prosecution would constitute a dangerous infringement on freedom: inherently coercive, politicized, and potentially arbitrary. Government’s incentives were all wrong, as a glance across the Channel revealed. Wouldn’t the state be tempted, for political expedience, to prosecute the innocent? And in nonpolitical cases, was not the decision to bring or decline prosecution the victim’s prerogative? Was it not possible that the state might co-opt a personal matter for its own ends, either displaying unjustified mercy or undue harshness (and perhaps bungling things either way)? The answers to these questions, Britain thought, were self-evident. With a few exceptions, such as minor crimes prosecuted by equally minor officials—the local constable charging a petty thief being archetypal—Britain did without dedicated prosecutors until 1880.7 Even today, Britain retains private prosecutions on the theory that public prosecutors might not always be the best advocates for the wronged. Mostly, private prosecutions survive in bland trade disputes, as when taxi organizations prosecute unlicensed drivers and recording studios go after pirates, though in 1995, bereaved parents brought murder charges (rather than civil wrongful death claims) after the Crown dropped its own efforts.8
The American experience paralleled the British, though not quite as militantly or uniformly. Regions colonized by the Dutch and French employed public prosecutors early on (as did a few English-dominated colonies such as Connecticut and Virginia), acclimating citizens to the idea the state might vindicate private wrongs without catastrophic consequences for liberty. The Revolutionary elite had also read Cesare Beccaria’s On Crimes and Punishments (1764), which argued that wrongs against a person could also be wrongs against society, logically requiring some form of public prosecution. By the 1820s, public prosecutors had spread across the states, though society had not fully committed to the concept. The public declined to provide prosecutors with resources out of cheapness, disinterest, a desire to protect liberty, or all three. For many years, public prosecution remained second-rate; when victims could, they hired private attorneys like Daniel Webster to pursue murder and other criminal charges.
As government expanded generally, public prosecution became routine and private prosecution became the anomaly, though it wasn’t until 1973–1987 that the Supreme Court fully disallowed private prosecutions of crimes in federal court.9 (In some states, private prosecutions of criminal law remain theoretically viable.) As government prosecutors became more competent, the public felt more comfortable leaving vindication in state hands. Prosecutors occasionally flailed, with the collapse of the OJ Simpson case providing a famous example. But since the Progressive Era, prosecutors have mostly gotten the job done. That, along with the expansion of civil litigation, muted worries about competence and the co-option of victims’ rights. Even if the state flubs its charge, victims’ survivors can bring parallel civil suits, though this backup system has been partially unwound by tort reform and immunity, renewing old concerns about undue dependence on state vindication of private wrongs.
The rise of institutional prosecutions made the need for publicly funded defenders obvious. The Constitutional right to publicly funded counsel in federal cases was established by the 1930s, but was not mandatory for state felony cases (vastly more numerous than federal cases) until 1963, when Gideon v. Wainwright overruled a contrary precedent from the 1940s.10 Public defense is even younger than public prosecution, and its rules and norms are in greater flux. For example, many assume the right to public counsel is absolute—after all those Miranda warnings on TV about the “right to an attorney,” how could they not? But the Court continues to define the contours of the right(s) to counsel. Among other limitations, courts have opined that the right to public counsel does not attach at all stages of criminal proceedings, nor does it guarantee particularly effective counsel.11 (Only the most deficient lawyering, whether paid for by the state or defendant, is grounds for an “ineffective assistance of counsel” argument, or so the Court says.) Nor is government-funded counsel always required where incarceration is not imposed. The tattered right to public counsel also does not firmly attach in matters where penal consequences are derivative (such as prison time enhancements based on lesser convictions secured with or without benefit of counsel), in quasi-criminal matters such as deportation, and in civil matters where the penalties can be as painful as jail (child custody, notably).12
The questions of liberty that animated the private versus public prosecution debate have never been entirely answered, while the right to counsel seems increasingly limp. In the development of public prosecutions, prosecutors emerged the winners—perhaps too much so.
Prosecutors stand in unusual tension with America’s adversarial legal system. Other lawyers represent, solely and zealously, their client’s interests; doing so is an ethical duty and a core tenet of the adversarial system. If Samsung rips off an Apple innovation, Apple’s lawyers can try to sue Samsung into oblivion without giving any thought to Samsung’s customers, workers, shareholders, or the public interest. Prosecutors, in theory, cannot be so single-minded, because they serve many masters with different, sometimes competing, values: the state, the public, the victims, and above all, justice. The ABA’s Standards for prosecutors provide that: (1) the “primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict,” (2) “[t]he prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim,” and (3) “the prosecutor is not obliged to file or maintain all criminal charges which the evidence might support.”13 State organizations and the U.S. Attorneys publish similar guidance.14 If an otherwise upstanding teenager eggs a house on Halloween, a district attorney may decline to press charges notwithstanding the homeowner’s cries for vengeance and mayoral bleats about zero-tolerance enforcement. Equally, a prosecutor may charge a shoplifter even if the local grocer, having just taken in Les Misérables, doesn’t feel like spending a weekday testifying against the local Jean Valjean.
In a word, prosecutors have discretion. Discretion is the stated price of laboring toward multiple goals. With few real constraints, prosecutors can charge whom they want, how they want, with what they want. Discretion is what makes prosecutors so powerful, yet the concept of discretion has never been the subject of thorough public discussion or agreement. What little debate occurs focuses on narrow areas: whether prosecutors should forgo enforcement of federal drug laws against marijuana users, or hunt down or ignore nonviolent immigration offenders. These debates transcend the facts of any one case, and are primarily discussions about particular social policies, not prosecutorial discretion. Nevertheless, these debates hint at dissatisfactions with wide discretion.
Discretion in any field carries the potential for abuse. For prosecutors, the two categories of greatest risk are under-prosecution and over-prosecution. The former happens when prosecutors, for improper reasons, fail to charge suspected criminals; the latter, when prosecutors throw the book at defendants when doing so serves neither the facts nor society’s interests. Save for a few hot-button issues (violence against minorities, political corruption, minor morals crimes, and some immigration matters), discretionary under-prosecution is not a major concern in America. Over-prosecution, however, is rampant. This is ironic: prosecutorial discretion derives from the state’s ancient power to dismiss overzealous private prosecutions. Discretion was originally an instrument of mercy, not a license to go overboard.
Discretion becomes more potent as the option set grows and, on this front, American prosecutors lack for nothing. The past fifty years witnessed runaway expansion in criminal statutes, what scholars have described as a process of “overcriminalization.”15 In 1998, the ABA estimated that more than 40 percent of federal crimes created since the Civil War were enacted in the preceding quarter-century.16 Since the ABA study, Congresses has been adding about 500 crimes every decade, with particular energy during election years.17 Overcriminalization makes criminal codes tremendous, asymmetric resources for prosecutors. Citizens cannot possibly know all the criminal laws that affect them as they navigate the limitless world of daily life, but prosecutors presented with an arrest record work against a defined set of facts and, luxuriating in hindsight, can always locate relevant charges among the thousands available. A few scholars have suggested that we should be consoled that most criminal statutes involve a few types of classic misconduct (weapons, drugs, fraud), but that naïve view provides no comfort to citizens who suffer forfeiture proceedings in places like Ferguson, or are overcharged with various offenses to coerce a plea, or tangle with unscrupulous and vindictive Justice Department functionaries. There are just too many crimes.
In fact, virtually everyone will do something criminal, however unwittingly. Petted your dog during a car ride? That’s good for a fine in D.C.18 Played online poker for money? That’s good for prison.19 (Somehow that’s embedded in a law nominally concerning shipping port security, not that Washington cares.) Heard that your state legalized pot and shared a couple of joints? The federal clink, if the U.S. attorney general is so inclined.20 Didn’t realize that states can’t override federal law? Irrelevant. Violated foreign laws, say, Honduran fishery laws pertaining to the harvest and packaging of spiny lobsters? Too bad; Honduran law can provide a predicate crime for the Lacey Act: forty-seven-count indictment, verdict against defendants.21 Does it matter that Honduras, between defendants’ conviction and appeal, changed its interpretation of its own lobster laws to favor the defendants? No, the Eleventh Circuit says that’s beside the point. Is it unsettling, and perhaps indicative of the legal fog in which citizens operate, that the lobster case required American judges to spend paragraphs figuring out what the word “law” means? What does it matter? Conviction affirmed; ninety-seven months in the pokey approved.
When presented with questionable conduct and unsympathetic defendants, prosecutors can always rummage up a charge, and usually many charges. Two people selling marijuana, for instance, seems to call for a simple drug-dealing charge: one wrong, one crime, one charge. But the Supreme Court has held that so long as each crime charged has a novel element to be proved, prosecutors may bring multiple charges for what is essentially the same conduct.22 Our two defendants could face charges for trafficking, conspiracy, money laundering, tax evasion, and customs violations, because the same kind of conduct is often criminalized under many different statutes. And if a weapon was involved (or just happened to be nearby), the charging universe expands—and in a system where a sneaker can be a “dangerous weapon,” finding additional charges presents no challenge.23 Using the complex and punitive sentencing initiatives of the 1980s, prosecutors can also fine-tune charges to ensure a wide range of sentences, the better to extract a plea bargain—six months or six centuries, you can have your pick as long as you plead. Federalism also allows indictments to be carefully constructed so as to preserve options for other prosecutors, as state and federal laws frequently criminalize the same basic conduct in slightly different ways. Should a prosecution collapse in federal court, a district attorney can prosecute some variant in state court, or vice versa.* The advantages of a do-over, fully informed by the defendant’s prior strategy, compound prosecutorial power.
In the federal system, the prosecutors are U.S. Attorneys and their assistants, who receive referrals from both federal agencies and from state police who suspect that a crime might have a federal component. In the states, prosecutors are generally termed “district attorneys” for a given county and receive referrals from local police and sometimes from federal agencies. Typically, law enforcement furnishes an arrestee and a case file, after which the prosecutor becomes master of the proceedings, deciding what charges to present, a bill that typically includes the arresting offense, plus any charges the prosecutor deems appropriate.24 Occasionally, prosecutorial investigations produce suspects on their own, and in such cases, the prosecutor has total control from the start.
The mechanics of commencing prosecution depend on the type of case. For misdemeanors, prosecutors simply file charges. Procedures for more serious crimes tend to be more involved. In the federal system and many states, a prosecutor brings high-profile cases either by preliminary hearing (a procedure used by many states) or via grand jury (preferred by the federal government and some states).25 Unlike a trial (or “petit”) jury, a grand jury has sixteen to twenty-three members, instead of the trial jury’s usual twelve, and decides by majority vote, rather than the unanimity required by most state and all federal petit juries.26 Rather less grandly for those dragooned into service, grand jurors usually hear several matters in a term that can last anywhere from a few weeks to eighteen months, and for which they are paid a measly $50 per diem at the federal level, hardly a sum that focuses the mind (and which can be lower than the legal minimum wage, an indication of the generally lawless atmosphere of the grand jury). Should the prosecutor convince the grand jury, the body returns an indictment, the formal list of charges.
Grand juries might seem to provide at least some check on prosecutorial discretion, allowing society to weigh in on charging decisions, as was one of their original functions. The historical grand jury was not the prosecutor’s pet it has become; it was an independent and entrepreneurial body that could conduct investigations itself, hear public and private complaints, and commence or quash proceedings. That institution is as dead as the Tidewater grandees who drafted the Constitution’s Grand Jury Clause. The United States Attorneys’ Manual still insists that one of the grand jury’s purposes is to “protect[]… citizenry from unfounded criminal charges.”27 But there’s no way a modern grand jury can fulfill that role, because the prosecutor controls the entire process and there are no real safeguards against abuse. Law’s usual protections against overreach are to make legal proceedings public, allow both parties and their lawyers to be present, and require judicial supervision. With grand juries, these protections do not really exist. Normal juror screening (voir dire) is a cursory feature, at best. If witnesses are called to bolster the prosecutor’s case, they are not subject to cross-examination, which might reveal testimonial weaknesses or perjury. In many jurisdictions, if the witnesses are also potential defendants, they do not enjoy a right to counsel present in the room.28 Judges play no real role and proceedings are secret.
The residence of grand juries in some parallel legal universe where normal protections don’t obtain makes them an especially useful tool for inquisition. The investigatory powers of the grand jury (which the Supreme Court seems to believe can be disentangled from the police/prosecutorial apparatus) are incredibly broad, and grand juries may inquire on matters based on evidence that would be excluded in normal court.29 A grand jury (read: prosecutor) “can investigate merely on the suspicion that the law is being violated, or even just because it wants assurance that it is not,” which is extraordinary, and without many equivalents in non-totalitarian systems.30 Prosecutors can use grand jury subpoena power to poke into whatever cranny they like. Worse, these special subpoenas are immune to challenges that might fell normal subpoenas, because the Court believes that applying the usual rules governing procedure and evidence would compromise the grand jury’s secrecy and its ability to investigate.31 This is perverse. Did the Framers really add a grand jury requirement so that the state could go hunting off-season and off-sides? No, a key goal was to allow community members to use independent judgment to check overreaching prosecutions.
Once the inquisition concludes, prosecutors present final charges and ask the grand jury to indict. The mechanics again operate at great remove from criminal trial practice. An indictment requires “probable cause,” a much lower standard than “beyond a reasonable doubt.”32 What constitutes “probable cause” depends on the jurisdiction, but it’s “not a high bar” and generally means that a reasonable person, considering the information presented, would conclude there’s a “fair probability” that the defendant committed the crime.33 The difficulty here is that the prosecutor, not an impartial judge, instructs the jury on the requirements of probable cause. Worse, the prosecutor has no obligation to elaborate on what the legal elements of a crime really mean or dive into pertinent defenses. For example, a CEO, having full access to financial statements, sells stock right before a plunge, and the prosecutor wants to indict. Was the CEO’s sale insider trading? To the layman, it might seem exactly that, no further details required. But the law requires several factors to be present, including that the executive improperly traded on the basis of inside information—but if the executive merely followed pre-filed plans with the SEC, as is customary, the sale would not constitute misuse.34 Prosecutors really should tell grand jurors these helpful tidbits, but there’s no good way to know if they do, nor is a certain haziness about the law fatal to an indictment.35 The jury votes, often blindly, and if twelve jurors (out of the usual twenty-three) agree, the indictment issues.36 The statistics make clear just how lopsided this process is: in FY 2010, federal prosecutors declined to proceed in just eleven instances because grand juries failed to return a bill, an event called an ignoramus, and statistically much less likely than being struck by lightning.37 As New York judge Sol Wachtler remarked, a grand jury would indict “a ham sandwich.”38 The whole grand jury process verges on farce, deodorizing prosecutions as “independent” while expanding prosecutorial power. For these and other reasons, all common-law countries but America and Liberia have essentially given up on grand juries.
Prosecutors’ tools are plentiful and the barriers to indictment low, but these factors do not by themselves explain why American prosecution is so vigorous. The level and intensity of prosecutions kept growing long after crime rates began their drop to generational lows, a mismatch for which population growth cannot account.39 One straightforward reason for the frequency of prosecution is because that’s what prosecutors’ constituencies and careers demand. For many decades, the public has favored tough-on-crime approaches, a view that prosecutors seeking reelection or promotion to judicial positions keep front of mind.40 For appointed positions, like U.S. Attorneys, elected officials understand voter preferences and nominate accordingly, if only to avoid catastrophic accusations of leniency, should a convict be undercharged or commit a vivid repeat. Once appointed, however, prosecutors proceed with almost no public accountability, at least when it comes to overcharging. Justice Scalia suggested that accountability might be achieved derivatively; if prosecutors turn into persecutors or otherwise misbehave, the public can punish the appointing executive at the ballot box.41 But Scalia’s claim is preposterous: the conduct of the U.S. Attorney for Wyoming is not a subject of intense study by Nate Silver at FiveThirtyEight, and anyway, electoral sanction does not apply to politicians making appointments in their final terms. However, if appointed prosecutors are largely immune to public outcry, they must still satisfy intragovernmental constituencies; police and federal agents also expect, even demand, aggressive prosecutions. A prosecutor who declines to pursue a case based on factual weakness or legal technicality risks non-cooperation on future cases or even public condemnation by uniformed officers.* The net effect is that what accountability exists for prosecutors is a one-way ratchet, toward more vigorous prosecution.
Appointments, however, are better than elections. Almost all states vote in their senior prosecutors, allowing the public to express tough-on-crime preferences directly. Candidates cater accordingly, as democracy demands they should. However, prosecutors’ special duties raise ethical questions about slavish fidelity to electoral whim, and campaign planks rarely feature rhetoric about well-rounded justice, though this is the prosecutor’s prime duty. To the extent that any gestures to leniency are made, they tend to focus on matters over which state prosecutors have no decisive power, such as de-emphasizing immigration or petty drug cases (both of which are controlled by federal law). Doubtless, these vows of grace are not without virtue, but promising them creates ethical quandaries, as voters may be misled about local prosecutorial authority.
It is for all of these reasons that most countries do not elect prosecutors. They view prosecuting, like judging, as a profession to be insulated from politics, using appointment systems that rely on professional organizations to screen and regulate. Even common-law countries blanch at prosecutorial elections; England, for example, appoints Crown Prosecutors.42 However, in America, state prosecutorial elections have been standard since the Jacksonian Era. Supposedly, this holds prosecutors to public account, but prosecutorial misconduct is largely invisible, and again, electoral accountability usually points in one direction: toward aggressive prosecution.
These considerations are amplified by a political culture that emphasizes conviction “productivity” above all other goals, to the point where budgets are explicitly linked to convictions. For example, the U.S. Attorneys’ Offices say that their goals are to prevent crime while “protect[ing] the rights of the American people” and “ensur[ing] and support[ing] the fair, impartial… administration of justice.”43 But their budgetary requests quantify those goals in terms of cases handled, emphasizing defendants found guilty.44 The DOJ notes that 92.7 percent of its cases in 2014 were “resolved favorably,” which in theory could include cases where, say, a prosecutor freed innocents, saved courts time and taxpayers expense, or upheld the law by dismissing charges where evidence was tainted. But no, looking at the math, “resolved favorably” really means convictions, and in 2014, U.S. Attorneys declined to prosecute in only 16.6 percent of matters received.45 Perhaps metrics like justice are too hard to reduce to tabular form. Fortunately, the DOJ’s budget request includes edifying “success stories.” All of the substantive success stories involve convictions or penalties.
Against the enormous pressures to charge stands the prosecutor’s conscience. Justice Jackson’s “gentlemanly” virtues would be handy here, given the rubbery ethical rules that brace the prosecutorial backbone.46 Prosecutors must obey the same basic rules as other attorneys, somewhat enhanced by, e.g., prohibitions against bringing cases without due cause. Nevertheless, the specific ethical guidelines applicable to prosecutors remain permissive and ambiguous—prosecutors can basically charge as they please, and where discretion is limited, it’s mainly to require prosecutors to pursue the most serious viable charges.47 The ABA’s laudable standards quoted earlier are also optional; prosecutors do not even need to consider them. Chief prosecutors may voluntarily provide ethical guidance, and the DOJ publishes its Manual to that end, but these guidelines have no real force of law, and U.S. Attorneys have “plenary” authority over criminal prosecutions and may depart from DOJ defaults, rendering the Manual borderline advisory.48 Equally disquieting is that most prosecutors’ offices do not make explicit their decision to adopt, forgo, or modify ethical guidelines. And even if, say, DOJ’s internal guidelines were breached, only DOJ has standing to sanction.49
Voters and defendants, in fact, have almost no direct recourse in the event of overzealous prosecution, thanks to our old enemy, sovereign immunity. Federal prosecutors enjoy functionally absolute immunity for their core duties.* 50 Even when prosecutors stray into collateral work, such as helping out with investigations, they still enjoy qualified immunity, a robust shield against misconduct.51 The window for liability opens when prosecutions are “vexatious, frivolous, or in bad faith,” and only when damage awards would not be “unjust” (for whom and in what way are not entirely clear). Misconduct cases are nearly impossible to win, and might not be economically viable in any event, with federal recoveries for costs and fees capped, and in some cases simply barred for individuals worth more than $2 million or corporations worth more than $7 million—i.e., the only litigants who can afford to sue prosecutors are financially deterred from doing so.52 The only route to recovery for abuse of discretion requires clear proof of egregious circumstances—prosecutions that are vindictive or grossly violate constitutional rights—and the case law makes these so hard to prove that they are all but impossible to win, absent a media frenzy.53 Worse, because prosecutorial immunity attaches to prosecutorial acts, those fulfilling prosecutorial functions (such as social workers who remove children from family custody) can also make claims of immunity.54
While the public cannot legally hold prosecutors to account, judges could. Prosecutors are frequently described as “quasi-judicial” (and by implication, are only “quasi-executive”), and surely this means the judiciary has a role to play in regulating prosecutorial behavior—not least because judges essentially manufactured prosecutorial immunity in the first place. Having laid the minefield, however, judges do not seem eager to wander through it, perhaps because doing so would call their own immunity into question. There is, however, one exercise of discretion judges must review—plea bargains—because judicial approval is required for the entry of most pleas.
Plea bargaining excites scholars, arousing the sort of indignation normally associated with some novel injustice, though bargaining has existed for centuries. In the heyday of English private prosecution, plaintiffs routinely brought two charges for the same wrong—forgery being a common example—an aggravated charge that carried the death penalty and a lesser charge with a lower sentence, such as transportation to Australia. Were defendants to cooperate by making partial restitution, the plaintiffs would drop the more severe charge. This remains the essential dynamic: a combination of multiple charges and varying penalties, granting prosecutors the means to deal.
While plea bargains have always been common, their essential nature has changed. In the nineteenth century, perhaps three-quarters of prosecutions were bargained out, often representing a good deal for all involved, as sentences imposed were frequently light and the state had limited capacity to accommodate legions of long-term prisoners. As the list of crimes and punishments became more severe in the twentieth century, plea bargaining became more coercive and the outcomes more dire. The introduction of mandatory minimums in the 1980s encouraged ever more defendants to settle; today, plea bargaining resolves up to 96+ percent of criminal charges.
Doubtless, most plea bargains are, as they always were, a function of some guilt. If bargains truly matched guilt and sentence, with an appropriate discount for the expense saved and without undue coercion, there would be no great problem. There are reasons to doubt that those happy conditions prevail. Prosecutors have extraordinary incentives to bargain hard. The public expects convictions, which plea bargains assure. Public clamor in the 1980s and 1990s also pushed prosecutors toward punitive sentencing that sent the right signal, and when life terms and capital punishment became plausible outcomes for crimes that formerly bore ten to twenty years of prison time, the pressure on defendants to cave became irresistible.
Pleas also lighten the prosecutorial workload, which can be high. This might seem like a weakness that defendants could exploit, but most defendants lack the resources (including the resource of pure innocence) to go to trial. Even if more defendants insisted on trial, prosecutors always have the resources to try at least some cases, so defendants face a collective action problem—a prisoner’s dilemma, of a sort. Defendants cannot be sure theirs will not be the case tried and they believe (with some reason) that prosecutors will pursue more punitive charges against anyone who refuses to plead, to send a message to other defendants who might not cooperate. The recent expansion of jail-without-bail also motivates defendants to settle. Many poor defendants unable to post bail or bond have already served time, lost their reputations and jobs, and therefore bargain for the only asset they have left: future freedom.
Plea bargaining’s triumph cannot be laid solely at the feet of prosecutors. Judges could always winnow out unfair bargains, though they have their own reasons to prefer quick and easy pleas. Judges—especially state judges—face the same caseload and electoral pressures that make pleas attractive to prosecutors. Reputational risk creates its own incentives, as a bargain, unlike a trial, carries little risk of an embarrassing reversal by an appellate court. Perversely, the reputational incentive became more powerful with the Warren Court’s expansion of defendants’ rights and criminal procedure protections, which provided defendants endless and complicated grounds to challenge the conduct of criminal trials. While the cases of the 1950s and 1960s were rightly celebrated as defense victories, as a whole, they tend to work best for individual defendants with good lawyers and strong cases while creating perverse incentives for trial judges to sign off on all but the craziest pleas. The rise of sentencing guidelines with mandatory minimums also encouraged bargaining, and even after Booker made the Sentencing Guidelines merely the defaults, judges must work hard to modify sentences toward leniency—a deterrent to doing anything other than reaching for the rubber stamp. The shortest, best route to leniency still runs through the prosecutor.55
There is no doubt that a substantial majority of defendants should plead out, for reasons of simple guilt or rational cynicism. But 96 percent is not a “substantial majority,” it’s virtually everyone, suggesting that too many defendants take bad pleas because they lack alternatives. For some charges, the line between expeditious pleading and legal blackmail blurs. This is especially so given the development of appellate waivers, where prosecutors require defendants to give up many rights to appeal—as the DOJ notes, “[t]he advantage of a broad sentencing appeal waiver is that it will bar the appeal of virtually any Sentencing Guideline issue.”56 These waivers also subject defendants to the risk that the court itself may mete out a longer sentence, undoing the bargain without undoing the plea, while defeasing an appeal.57 Unwilling pleas also subvert the old ideal that “every man has his day in court” and render nugatory the right to a jury trial—you cannot be said to have a “right to vote” if it requires a game of Russian roulette before you cast a ballot. But this is the dynamic prosecutorial power fosters. And curiously, the public defense system—the prosecutor’s nominal opponent—has become an unhappy accomplice to the plea bargain regime.
Public defenders arrived about a century after public prosecutors and, from the start, one of their stated goals was to facilitate plea bargains. Naturally, some of this was just a PR ploy by defense advocates to overcome public unease with using taxpayer dollars to help criminals escape sanction. Public defenders have always been committed to shielding their clients from harsh sentences and wrongful convictions. That does not mean they have not accidentally made good on their original talking points.
What co-opted public defenders into the plea bargain regime is the substantial funding mismatch between prosecutors and defenders. In 2007, the last year for which comparable data were available, states spent $5.8 billion on prosecutors’ offices versus $2.3 billion for public defenders.58 Quite naturally, public defenders’ offices are overwhelmed in ways that prosecutors’ offices are not. Many states also rely on contractors to conduct public defense, invariably at below-market rates. New York’s standard rates for felony defense are $75 per hour, which means the state can pay less per hour for murder defense than Manhattanites do to have a sink unclogged.59 Other jurisdictions use fixed-fee contracts, paying a flat rate for a set number of cases regardless of their complexity, and these, like all such arrangements, encourage corner-cutting. Settlements of unseemly expedience are frequent—an egregious example being one California county that paid so little that only 0.5 percent of cases on that contract went to trial; no surprise, given that attorneys (including a newbie assigned to serious felonies) managed hundreds of cases each.60 And unlike prosecutors, who frequently have in-house investigators to supplement the considerable police resources at their disposal, public defenders often have limited investigative help to build a defense.
Plea bargains, even bad bargains, tempt overworked defenders. The law assumes the defendant is the client of his attorney and master of his defense, but budgetary constraints render that mostly fiction. A defendant who pushes for trial can be an aggravation to his defender and to other defendants making claims on the same limited resource. Defenders’ status as repeat players, constantly bargaining with the same prosecutors, compounds the pressure, as defenders do not want reputations for unreasonably resisting pleas (even when it’s in the interest of any single defendant to negotiate hard).
Many defenders have won significant victories for their clients, including proving factual innocence. These are, however, extraordinary events and nothing about the public defense system, save the individual passion of an attorney, makes such outcomes as common as they might be.
Given that a large fraction of defendants are factually guilty of something, it’s fair to ask whether any of these critiques matter. For the legal system itself, the answer is a clear “yes.” The whole system of public prosecution and defense violates the spirit of the law, and could eventually undermine the respect criminal law needs to survive. A system that promises judicious prosecution while focusing only on convictions, one that mandates no special set of ethics for prosecutors, insulates prosecutors from legal accountability, reduces the grand jury tradition to a charade, fails to provide adequate funding to Constitutionally mandated defense counsel, and conducts 96 percent of its business by backroom deal, is a system that sells its credibility far too cheaply. Arguably, the degradation of criminal law provides enough reason to demand reform.
Skeptics might ask to see more concrete harms. The whole culture of secrecy makes it impossible to present summary statistics; cases not brought to public trial, tested by adversaries, and resolved by judges and juries can’t always be evaluated. Among the Rumsfeldian known unknowns, however, lurk enough known knowns to give anyone pause. We know that hundreds of convicts have been exonerated by DNA and, even without the magic of the lab, that prosecutors had good reason to doubt the guilt of many of these defendants.61 We know that overzealous prosecutors have (per one federal judge) created an “epidemic” of Constitutional violations, including withholding crucial evidence, and charged defendants whom prosecutors had good reason to believe were legally or factually innocent.62 We know that prosecutors have used their discretion to make an example out of defendants as a matter of policy, not the facts of a given case.63 Aaron Swartz, a hacker who downloaded reams of academic articles in a misguided crusade to make intellectual property more available, committed a crime—though was that worthy of thirteen felony counts, a $4 million fine, and three decades in prison? We know that the academic groups who suffered the theft preferred to leave Swartz unprosecuted. But we also know that the U.S. Attorney disagreed, pushing forward until Swartz killed himself, a suicide his family blamed on relentless, overreaching prosecution.64
We also know that prosecutors emphasize crimes that produce quick pleas, just as we know prosecutions can have racially disparate effects depending on the type of crime.65 We can also reasonably conclude that prosecutions for petty crimes considerably reduce resources available to pursue other wrongs with greater economic and personal consequences. We also know that prosecutorial discretion has long been tied to illicit purposes, tangled up in Jim Crow, and has been abused to protect other enforcers.
What we don’t entirely know is why prosecutors occasionally go berserk, as when an Alabama prosecutor brought a case against a 76-year-old veteran for growing marijuana, fully aware that the defendant’s decades-old robbery priors would result in an automatic life sentence without parole.66 (Even Roy Moore thought it ridiculous.) But we do know that prosecutors failed to bring charges against Harvey Weinstein despite possessing evidence of his misconduct until public outrage prompted a new course, and that a New York DA proved unusually accommodating to Donald Trump, Jr. and his sister, having received a campaign donation from the family’s corporate lawyer.67 So we have our suspicions about “discretion.” There are unknown unknowns, too, though until prosecutors become more transparent about their process, we can only guess—and that we have to guess is yet another reason for reform. So, the answer to whether the system requires reform is, at a theoretical and practical level: yes.
Necessary though reforms may be, nothing has been done to refashion the culture or incentives that make miscarriages of justice likely. Nor has anything been systematically done to meaningfully improve public defense, despite decades of begging by defenders and public interest groups. Out of desperation, entire defenders’ offices have refused to take new cases or have sued to obtain adequate funding. (One defender took the grimly humorous step of invoking the bar’s right to appoint one of its own to defend an indigent—said appointee being the governor of Missouri, who had refused adequate funding to public defense offices.)68
Reformatory inaction has high social costs. Overcriminalization, overcharging, and the culture of plea bargaining have led to extraordinary levels of incarceration, costing tens of billions, though as we’ll see in Chapter 12, without much deterrent or reformatory effect. The present system also undermines law’s integrity by reducing to rhetorical posturing all the promises of jury trials, indigent defense, judicious prosecution, the judge-as-final-arbiter, and so on. It’s no real consolation that the lack of public outcry is as much a result of public attitudes toward crime as simple lack of knowledge. What would citizens make of prosecutors who carry no binding ethical responsibilities and cannot be held to legal account?
The system deserves judgment, but most of the public’s criminal lawyers deserve sympathy. The world of criminal law is, by the standards of private law, unrestrained mayhem. Defendants rarely make for easy partners in the legal process: mental illness, a lack of fluency, poor education, and varying grasps of the legal system are routine challenges—and of course, some are violent, incorrigible criminals. For dealing with all of this, prosecutors and defenders collect modest pay and receive fewer social rewards than other legal servants like police. Prosecutors’ jobs may not be as physically dangerous, but they are hardly safe. Serious physical attacks are quite rare, though intimidation is widespread, with almost half of prosecutors’ offices receiving threats.69 The DOJ doesn’t collect comparable data for defense lawyers, but threats against them are routine, and perhaps even more frequent than against prosecutors.
It is precisely because the circumstances of criminal law are so awful that the legal system must be reformed. Legal systems exist to help us transcend the passions and frailties of the moment. A system that requires ethical behavior and holds prosecutors to account checks the very human tendency to assume, after prosecuting nine despicable criminals, that the tenth is no different. And a system that grants both sides sufficient monetary and temporal resources is one that can treat prison sentences as something other than trinkets to be auctioned on a legal eBay. These systems are not fictions: they exist in other countries. They should exist here, because they are, quite literally, the systems American law requires.