Prosecutors and Their Power – Time to Re-evaluate?

The recent spate of articles on Federal sentencing (see NY Times 9/26/11, WSJ 9/27/11 Thomson Reuters 9/24/11) are informative, and may present an opportunity to educate both the general public and the professional legal community about issues such as the overreach of the Federal criminal justice system; the power, and abuse of that power, by federal prosecutors; and the draconian prison sentences being sought by prosecutors across the country for crimes that two decades ago would have been civil sanctions.

This education is critical. We have reached a time in our country’s history where the criminal justice system is driving us into fiscal, moral and legal bankruptcy.  Each of these articles highlight part of the problem and, combined, give a “Readers  Digest” synthesis of some of the more vexing issues that have caused our crisis.

The WSJ article is important for its analysis of both the “mens rea” (criminal intent) theory, as well as a statistical report on the number of behaviors that have become “criminalized”, thus leading to more prosecutions and more prison sentences. It highlights the “Animal Enterprise Terrorism Act”, passed by Congress in 2006 with only about a half dozen of the 535 members of Congress voting on
it.  It also referenced a study done by the National Association of Criminal Defense Lawyers and the conservative Heritage Foundation that found more than 40% of non-violent offenses created or
amended during the last two Congresses which had weak “mens rea” at best.  If there is no criminal intent, can there still be a crime?

The New York Times article targets what they see as a “Sentencing Shift” which they document as giving more power to prosecutors as a result of mandatory sentencing laws and other harsher  penalties.  The article is informative, but should have been written over 20 years ago, when the Federal Sentencing Guidelines were enacted, giving discretion for charging decisions (and therefore sentencing and plea bargaining authority) to the United States Attorney Offices around the country.  One only needs to look at the number of white collar offenses charged as money laundering to understand this issue.  Judges, who routinely call sentencing the most difficult part of their job, were essentially locked out of sentencing decisions.  Fortunately, the Supreme Court in the Booker decision restored the discretion of Federal Judges.

The NY Times article also misses the point of “how we got here from there”?  A telling quotation from Rachel Barrow, a law professor from NYU, begins to answer that question.  She posts that “…Legislators want to make it easy for prosecutors to get the conviction without having to go to trial.  And prosecutors who are starved for resources want to use that leverage”.  Missing from the debate is an understanding of where a majority of our legislators have previously served in office.  Look at the rolls of our local, state and federal politicians.  They have overwhelmingly flocked from positions as county prosecutors, district attorneys and United States Attorney Offices. Charles Schumer, Rudy Giuliani and Chris Christie are the poster boys for this trend.

The final article, in Thomson Reuters, would seem innocuous to most casual readers, in that the government was asking for a sentence of 8-10 years for Winifred Jiau, a consultant in the insider trading jihad being conducted in the Southern District of New York.  Her offense—allegedly stealing earning reports from two computer chipmakers and being paid a total of $208,000 by hedge fund executives.  Her mistake—going to trial.  Other major figures in the cases, far more involved but who cooperated with the government, were sentenced to much lower terms.  The government, in its filing, wanted a double digit sentence for deterrence purposes, a common argument that is not substantiated by any criminal justice research.  Fortunately, Judge Jed Rakoff refuted their argument and sentenced her to four years imprisonment.

Education is important in the call for reform in our criminal justice system.  It is my hope that judges, defense attorneys and the public continue to look for solutions to the abuse of power by  prosecutors.

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