The Nature and Function of Prosecutorial Power

David Sklansky of Stanford law has published a lengthy history and analysis of prosecutorial power. The abstract:
“Much of what is wrong with American criminal justice — its racial inequity, its excessive severity, its propensity for error — is increasingly blamed on prosecutors. Moreover, prosecutors seem to be getting ever more powerful, not just in the United States but in much of the rest of the world as well. The nature of prosecutorial power and the reasons for its growth remain murky, though. As a result, it is hard to know exactly what to make of prosecutors, or what we should expect from them. There is plenty of thoughtful, well-informed scholarship on prosecutors, especially in the United States, but most of this work is self-consciously pragmatic. It takes the modern prosecutor’s office as a given, a dragon that we find living in our midst and wish to tame. My goal here is slightly different, less immediately reformist. I want to step back and try to understand the dragon: what kind of animal it is and why it is with us.”

JJDPA

Congress is taking up the issue of re-authorizing the Juvenile Justice and Delinquency Prevention Act of 1974 with this year’s Supporting Youth Opportunity and Preventing Delinquency Act. The bipartisan bill, according to its authors:

“Sets kids up for long-term success by helping them acquire skills necessary to grow into productive members of society and promoting opportunities to turn their lives around;

Provides state and local leaders flexibility to meet the needs of delinquent youth in their communities and improve public safety;

Helps at-risk youth avoid the juvenile justice system by supporting prevention services;

Prioritizes what works by focusing on evidence-based strategies with proven track records; and

Improves accountability and oversight to deliver positive outcomes for kids and protect taxpayers.”

Prosecutor’s Immunity

ProPublica discovers the relative immunity of prosecutors from consequences for misconduct in a 2-part series highlighting several high-profile new York cases. Their takeaway:

“A ProPublica analysis of more than a decade’s worth of state and federal court rulings found more than two dozen instances in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions.

Yet the same appellate courts did not routinely refer prosecutors for investigation by the state disciplinary committees charged with policing lawyers. Disciplinary committees, an arm of the appellate courts, almost never took serious action against prosecutors. None of the prosecutors who oversaw cases reversed based on misconduct were disbarred, suspended, or censured …

The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor’s abuse were ultimately exonerated, often after years in prison.”

 

Prosecutors the problem in criminal justice?

The New York Times reports on disparities in enforcement as a driving force in America’s mass-incarceration problem. The takeaway:

“The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”

He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

Bad Deals….

According to the Innocence Project, more than a quarter of convicts who later end up exonerated through DNA evidence made a false confession or incriminating statements. Here is one of those stories from the  Center for Investigative Reporting.

An End To Juvenile Solitary?

Senator Leno’s bill to end solitary confinement as punishment for juvenile offenders, SB 1143, passed the Assembly last week, and should now be headed to Governor Brown’s desk. As the LA Times points out:

“The bill caps an extraordinary evolution in the way troubled youths are treated while held at juvenile halls, probation camps and prisons. Solitary confinement for hours, days or even weeks was until recently a standard way to punish wards for misbehavior, and attempts to stop it were blocked by lawmakers in 2011 and every year since.”

Expanding expungement

The Harvard Law and Policy Review argues that jurisdictions should consider expanding the types of criminal record information that are eligible for expungement, and provide incentives to stop discrimination based on criminal records.

Although several states have enacted laws to expand “the range of expungement remedies” available to people with criminal records, the laws have not provided sufficient relief for people who face discrimination, writes Brian M. Murray, Abraham Freedman Fellow at Temple University’s Beasley School of Law in a paper entitled “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels.”

An estimated 25-30 percent of the adult population of Americans have criminal records—a “staggering” number which continues to increase, as the FBI adds some 10,000 names to its database every day, the study says.

That makes it a priority to address the barriers faced by individuals with criminal records, which include difficultly finding employment or enrolling in educational programs, the author writes. They may also be disqualified from receiving unemployment benefits, cash assistance and medical benefits.

“Perhaps the best way to limit the effect of criminal record history information is to prevent its systematic creation in the first place, even after an individual encounters the system,” Murray writes. “Arrest and conviction records attach scarlet letters to individuals.”

5.85 Million

The Sentencing Project reports that 5,850,000 Americans are disenfranchised by restrictive voting rights laws that prevent people with felony convictions from voting. The report found that:

-Approximately 2.5 percent of the total U.S. voting age population – 1 of every 40 adults – is disenfranchised due to a current or previous felony conviction.
-Ex-felons in the eleven states that disenfranchise people after they have completed their sentences make up about 45 percent of the entire disenfranchised population, totaling over 2.6 million people.
-The number of people disenfranchised due to a felony conviction has escalated dramatically in recent decades as the population under criminal justice supervision has increased. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and over 5.85 million in 2010.
-Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states – Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia – more than 7 percent of the adult population is disenfranchised.
-1 of every 13 African Americans of voting age is disenfranchised, a rate more than four times greater than non-African Americans. Nearly 7.7 percent of the adult African American population is disenfranchised, compared to 1.8 percent of the non-African American population.
-African American disenfranchisement rates also vary significantly by state. In three states – Florida (23 percent), Kentucky (22 percent), and Virginia (20 percent) – more than one in five African Americans is disenfranchised.