'Economist': Judges must seize back power from prosecutors

The Economist last week (Oct. 4) published a pair of pieces lamenting the super-sizing of prosecutorial power and calling for the state to hand back some of its authority to the judiciary.

• The kings of the courtroom: How prosecutors came to dominate the criminal justice system
• A plea for change: American prosecutors have too much power. Hand some of it to judges

The arguments are framed in terms of the federal government but would apply equally well to state-level courtrooms. E.g., "Several legal changes have empowered [prosecutors]. The first is the explosion of plea bargaining," which occurs at a slightly higher rate in Texas, even, than the federal number cited by The Economist.

"Another change that empowers prosecutors is the proliferation of incomprehensible new laws." Check.

Further, "The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with 'co-operating witnesses,' once rare, have grown common." Check. (The article opened with the story of prosecutors allegedly withholding evidence of a snitch deal in Todd Willingham's capital case.)

The main story concludes:

Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”