Judge says prosecutors should follow the law. Prosecutors revolt.(washingtonpost.com)
washingtonpost.com
Judge says prosecutors should follow the law. Prosecutors revolt.
http://www.washingtonpost.com/news/the-watch/wp/2014/03/07/judge-says-prosecutors-should-follow-the-law-prosecutors-revolt/?tid=pm_lifestyle_pop
32 comments
The Los Angeles prosecutors are very nasty. Especially in Van Nuys where I know a woman & her experience. She was afraid of going to court because she was taken to jail a couple of times in a row. A simple case of petty theft ended up costing over $20k in legal fees, court costs, & other opportunists scamming money from her. Courts don't try to work with the defendants. They have strict rules and breaking a rule means being punished, usually through loss of freedom and/or some heavy fine.
It's difficult to speak out about this because people don't want to pay heed to, nor believe, "criminals". Our society is intolerant & also complicit with these injustices. It's quite often to have measures to have "zero tolerance" and "lock up criminals and throw away the key". There is collateral damage with such measures.
Such measures is tantamount to creating an underclass who can be easily taken advantage of and who have little voice and no sympathy.
Note: She also had some emotional issues. Being put in jail for minor incursions does not help. Instead, it rips apart her life & the lives of those who try to help her.
---
@crito - Now you know a bit more about where my "persecution complex" comes from. People who are in a judgmental frame of mind show little restraint when meting out punishment. It's f*cked up & unhealthy. At risk of sounding like I have a victim mentality, there's more.
That's why I'm a proponent of a tolerant society. People make mistakes. People have unhealthy viewpoints. Our society feels a strong desire to blame & punish others. However, judgement only makes things worse for everybody by perpetuating the cycle.
It's far better to encourage health & rehabilitation. But then, there are entrenched interests who want to, or at least have no compunction to, keep the majority of the population down. Thus they encourage a perpetual state of fear.
It's difficult to speak out about this because people don't want to pay heed to, nor believe, "criminals". Our society is intolerant & also complicit with these injustices. It's quite often to have measures to have "zero tolerance" and "lock up criminals and throw away the key". There is collateral damage with such measures.
Such measures is tantamount to creating an underclass who can be easily taken advantage of and who have little voice and no sympathy.
Note: She also had some emotional issues. Being put in jail for minor incursions does not help. Instead, it rips apart her life & the lives of those who try to help her.
---
@crito - Now you know a bit more about where my "persecution complex" comes from. People who are in a judgmental frame of mind show little restraint when meting out punishment. It's f*cked up & unhealthy. At risk of sounding like I have a victim mentality, there's more.
That's why I'm a proponent of a tolerant society. People make mistakes. People have unhealthy viewpoints. Our society feels a strong desire to blame & punish others. However, judgement only makes things worse for everybody by perpetuating the cycle.
It's far better to encourage health & rehabilitation. But then, there are entrenched interests who want to, or at least have no compunction to, keep the majority of the population down. Thus they encourage a perpetual state of fear.
Related: I don't understand how the "few bad apples" defense always seems to be used to argue for "so ignore it" rather than "and by the way, when we find a bad apple, it goes straight in the garbage disposal where it belongs". Like, all these prosecutors are going apeshit because a judge dared to say they should possibly lose their licenses -- what about the idea that they should serve time, time comparable to what they may have capriciously caused innocents to serve? "Law and order" is all well and good, but I'd like to see it go both ways once in a while.
I don't think they should lose their licenses, they should be tried for contempt and the mandatory minimum applied.
Prosecutors might be well served in these instances by the judge refusing a plea bargain as is their prerogative.
Prosecutors might be well served in these instances by the judge refusing a plea bargain as is their prerogative.
Mike Nifong is a good example of someone who abused his office. Wikipedia calls him a "rouge" prosecutor. Maybe he wasn't so rouge...
Off-topic pedantic point. Ro_gu_e is an adjective that means without guidance or lacking oversight. Ro_ug_e is a type of cosmetic, namely one for making the cheeks redder. While the image of a red-faced prosecutor screaming at his clerks is amusing, I don't think it's what you had in mind.
Sorry to distract from your otherwise valid comment.
Sorry to distract from your otherwise valid comment.
Completely relevant point, I would say: I assumed ‘rouge’ meant ‘red’ in that context, a.k.a. presumed socialo-communist, a.k.a. a prosecutor trying to redress economic and political injustices, going after the rich and powerful and ignoring petty crimes, like several prosecutors have been accused of doing in France and Italy. That made the original common odd.
> mandatory minimum applied
I’m not familiar with mandatory minimum for contempt. I would believe it fails to match the point, that is to allow the judge to operate his or her courtroom reasonably.
I’m not familiar with mandatory minimum for contempt. I would believe it fails to match the point, that is to allow the judge to operate his or her courtroom reasonably.
I suppose there is some tradeoff involved with crafting new rules, but all the new rules that I have seen suggested seem sensible and reasonable.
Add on top of the few bad apples spoiling the barrel the fact that certain positions and jobs create quite strong arrogant bastard self-selection pressures and it's an extra recipe for disaster. It's the same as the NSA -- people who have doubts about the system or feel like being lenient will self-select out, just like those who believe in actual privacy and civil liberties will self-select out of the NSA, creating a remnant that's filled with group-thinking evil apples.
Frankly, I think we'd be better off selecting people are random from the population at large to be in such powerful positions.
Frankly, I think we'd be better off selecting people are random from the population at large to be in such powerful positions.
I appreciate the intent to use random citizens to hold power, but prosecutor might be the position where years of professional training matters. Remember what Churchill said about five minutes with the average voters? Well, there is one bigger scandal in any democracy (it is actually mentioned in the article) and that’s how much someone accused of anything, specially if he happens to be unattractive, socially isolated, poor and male, is presumed guilty. This is far worst for ‘random people’, and allowing non-experts to choose who to prosecute without consequence would lead to spectacular injustices.
That’s why it is the jury who is made of inexperienced citizens selected at random: prosecutors now have the burden to convince them all, including those who empathise with the accused. They are judged over their career by how their prejudice leads them to bad cases, and prevents them from winning cases.
If prosecutors saw acquittals as failure on their part, and need to re-consider their world-view, that would work. I believe the article and the judge see the problem as them seeing such (rare) events as abuse of the system against them, personification of the innocent defendent public, and that’s the source of the issue.
That’s why it is the jury who is made of inexperienced citizens selected at random: prosecutors now have the burden to convince them all, including those who empathise with the accused. They are judged over their career by how their prejudice leads them to bad cases, and prevents them from winning cases.
If prosecutors saw acquittals as failure on their part, and need to re-consider their world-view, that would work. I believe the article and the judge see the problem as them seeing such (rare) events as abuse of the system against them, personification of the innocent defendent public, and that’s the source of the issue.
I think that one solution is to make being a prosecutor a political dead end. In other words, convince the public to never, under any circumstances, vote for anybody who has ever been a prosecutor (except perhaps if the position in question is prosecutor, though excluding this exception would be creating de facto term limits which might be a good idea anyway...).
That way somebody only becomes a prosecutor if being a prosecutor is what they actually want to do with their career in public service. It would not be a stepping stone for a further career in politics.
If term limits (de facto or de jure) existed for prosecutors, that would put the brakes on prosecutors optimizing for conviction rate.
That way somebody only becomes a prosecutor if being a prosecutor is what they actually want to do with their career in public service. It would not be a stepping stone for a further career in politics.
If term limits (de facto or de jure) existed for prosecutors, that would put the brakes on prosecutors optimizing for conviction rate.
What always amuses me about the "bad apple" defense is that in many situations I would imagine that if you objectively looked at the size of an organization vs the number of people involved in scandals over the years, it's not just a couple of bad apples but quite the opposite - say a statistically significant higher rate of xxx crime or behavior vs the general population.
I would imagine this happens by itself really: once something like corruption/bullying/sadism becomes established enough in any small or large institution, it tends to drive people with a conscience away (instead of attracting them to where they are most desperately needed) - where that doesn't happen actively, that is, as a sort of self-defense against likely snitches. So over time, left unchecked, it just compounds.
Wait, it's not "a few bad apples are no big deal, dispose of them when something happens to get press"?
I always thought it was just about how people judge apples. That's like if the laws of physics and biology had a real example of broken window theory.
I'm glad someone is finally standing up for the rights of common citizens. I really don't want to see the social experiment of the United States end in a failure, and every day our rights are eroded, we get closer to that. I like this country, and consider myself a patriot. I just also have to recognize that the people who participate in running this country do not always have our best interests at heart.
I really don't want to see the social experiment of the United States end in a failure, and every day our rights are eroded, we get closer to that.
If you watch television, you will think that the world is becoming worse. After all, news is only when rare things happen, and usually very bad things at that. Now, I am not saying that that criminal justice system is in need of a huge overhaul. It is a real human right problem that needs to be fixed.
But what you're saying is that you think that we are losing rights. Are we really? Consider that in the last 50 years or so, we are gaining more rights. Even animal gains more right. Perhaps this is not the case in the last 10 years or so. Maybe we really are losing rights.
Consider this: When somebody brings a human right problem, that is a good omen. That mean somebody acknowledges the problem. If a human right problem remains hidden from view, our perception will be wrong, because it means we think we have more right or freedom than we really have and we can't do anything about it. So the Snowden revelation is good news, but the bad news is that Snowden is necessary in the first place and the fact that it had remain hidden across two presidency.
So if the media is openly reporting abuses done by prosecutors and other agents. That is a good thing. It means that our error correction mechanism is starting to work, which will hopefully lead to a change that curb the abuse and prevent it from happening.
But what about our freedom over the last ten years? What's the reality? One of the freedom index graph says that our freedom across the world is quite stable, maybe increasing. http://en.wikipedia.org/wiki/Freedom_in_the_World#Trends
I have yet to look at other graph. But if you're going to say that we are losing our rights, maybe it's a good idea to quantify how much over what time period.
If you watch television, you will think that the world is becoming worse. After all, news is only when rare things happen, and usually very bad things at that. Now, I am not saying that that criminal justice system is in need of a huge overhaul. It is a real human right problem that needs to be fixed.
But what you're saying is that you think that we are losing rights. Are we really? Consider that in the last 50 years or so, we are gaining more rights. Even animal gains more right. Perhaps this is not the case in the last 10 years or so. Maybe we really are losing rights.
Consider this: When somebody brings a human right problem, that is a good omen. That mean somebody acknowledges the problem. If a human right problem remains hidden from view, our perception will be wrong, because it means we think we have more right or freedom than we really have and we can't do anything about it. So the Snowden revelation is good news, but the bad news is that Snowden is necessary in the first place and the fact that it had remain hidden across two presidency.
So if the media is openly reporting abuses done by prosecutors and other agents. That is a good thing. It means that our error correction mechanism is starting to work, which will hopefully lead to a change that curb the abuse and prevent it from happening.
But what about our freedom over the last ten years? What's the reality? One of the freedom index graph says that our freedom across the world is quite stable, maybe increasing. http://en.wikipedia.org/wiki/Freedom_in_the_World#Trends
I have yet to look at other graph. But if you're going to say that we are losing our rights, maybe it's a good idea to quantify how much over what time period.
You are forgetting there is a difference between the perception of freedom and actual freedom. While someone may be free to write about the problem, if there is no change in the system, is there actual freedom?
People in the US often equate the freedom of the press, which is under attack as it is, with freedom. The freedom to speak is not the freedom to act, and for many reasons rightly so. In this case, if the justice system doesn't uphold justice, we end up with only an escape valve for the pressure, but no change in the fundamental system.
Looking at the last 50 years, I would find it hard to say that everyone has it better. Look at the convictions for possession of crack cocaine versus cocaine powder. Things have gotten better for some people, but for many others, the world hasn't changed that much, especially for minorities in criminal cases.
People in the US often equate the freedom of the press, which is under attack as it is, with freedom. The freedom to speak is not the freedom to act, and for many reasons rightly so. In this case, if the justice system doesn't uphold justice, we end up with only an escape valve for the pressure, but no change in the fundamental system.
Looking at the last 50 years, I would find it hard to say that everyone has it better. Look at the convictions for possession of crack cocaine versus cocaine powder. Things have gotten better for some people, but for many others, the world hasn't changed that much, especially for minorities in criminal cases.
I don't disagree with your analysis, but people don't gain or lose rights based on government whims. People have inalienable rights that can be respected or violated. This may seem like a semantic point, but I think it's important that to remember that fundamental rights, like the right to to a fair trial, exist no matter whether the law and its agents honor those rights.
When governments fail to respect inalienable rights, they lose legitimacy.
When governments fail to respect inalienable rights, they lose legitimacy.
Inalienable rights is verbage that sounds good, but means practically nothing.
Do you have a right to life? Well no - America is one of the only first world nations to still have the death penalty.
Liberty? The standard faire of our justice systems is to remove that.
Pursuit of happiness? This is the only one I'd argue everyone does have, that actually is inalienable. The loss of that tends to actually cause problems.
But everything else comes stamped with some big provisos about one's place and actions within society, and a discussion where we hamstring ourselves over what is and isn't a right ultimately is what erodes those we do have - worrying too much about whether something is a right, rather then if what we're doing is right.
Do you have a right to life? Well no - America is one of the only first world nations to still have the death penalty.
Liberty? The standard faire of our justice systems is to remove that.
Pursuit of happiness? This is the only one I'd argue everyone does have, that actually is inalienable. The loss of that tends to actually cause problems.
But everything else comes stamped with some big provisos about one's place and actions within society, and a discussion where we hamstring ourselves over what is and isn't a right ultimately is what erodes those we do have - worrying too much about whether something is a right, rather then if what we're doing is right.
I sounds like you agree that what is right exists outside of legal definitions, which was my point. The point being that moral authority does not derive from the legal code. To the extent that governments can be blamed for failing to protect the rights to life, liberty, property, conscience, etc., they can be found to be immoral or unjust. And at a certain point, the laws of the government (or even the government itself) loses legitimacy.
This was really the thesis of the Declaration of Independence.
This was really the thesis of the Declaration of Independence.
I agree with what you said, but I actually quit watching TV (I got rid of cable like 3+ years ago, Netflix only nowadays) because its just talking heads on the news and no actual news.
I'm 30. What happened 50 years ago I wasn't here for. What happened 20 years ago I didn't really understand. All I know is what has happened over the past 10-15 years.
What I see is a worldwide communication network (the Internet) slowly being criminalized because of the actions of a few people: the big bad pedo/piracy/terrorist boogie man that some elected officials keep dragging out to shove anti-free speech and anti-small business legislation through the system.
Those who give up liberty for safety deserve neither.
I'm 30. What happened 50 years ago I wasn't here for. What happened 20 years ago I didn't really understand. All I know is what has happened over the past 10-15 years.
What I see is a worldwide communication network (the Internet) slowly being criminalized because of the actions of a few people: the big bad pedo/piracy/terrorist boogie man that some elected officials keep dragging out to shove anti-free speech and anti-small business legislation through the system.
Those who give up liberty for safety deserve neither.
Popular issues like environmentalism and LGBT rights may be advancing, but more niche yet equally important issues, such as excessive privacy intrusions (mass surveillance, TSA), software and "DNA" patents are not. And these are important issues that will shape the future.
I applaud this judge. I also feel like I'm not hearing the full story.
Two things:
1. I suspect the genisis of this immunity was to inoculate prosecutors from coercion by politicians - which is probably a good thing. But I would be curious to know about the logic behind it.
2. While perhaps it might be worthwhile to have some level of immunity that logic frays somewhat when acts that would generally be considered immoral and perhaps criminal are unaddressable.
1. I suspect the genisis of this immunity was to inoculate prosecutors from coercion by politicians - which is probably a good thing. But I would be curious to know about the logic behind it.
2. While perhaps it might be worthwhile to have some level of immunity that logic frays somewhat when acts that would generally be considered immoral and perhaps criminal are unaddressable.
The "absolute immunity" for prosecutors was established in Imbler v. Pachtman (1976). The logic is that if prosecutors could be sued by people they accused but failed to convict,
that "would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust."
(http://scholar.google.com/scholar_case?q=Imbler+v.+Pachtman&...)
(http://scholar.google.com/scholar_case?q=Imbler+v.+Pachtman&...)
interesting, thank you!
One problem with the Judge's statement is that it is beyond the scope of an actual case or controversy. A Judge should judge each case individually not make up general rules and policies to prospectively apply to future behaviour, since that is for the legislature and executive in a separation of powers system. If the Judge wants to issue a warning or punishment to a particular prosecutor for a particular inappropriate behavior that would be in bounds; but media statements designed to influence elections are out of bounds for american judicial behavior.
In the interest of hearing both sides of the story, can someone explain what legitimate complaints prosecutors may have about these developments, if any?
They fear corrupt judges, perhaps, theoretically. Maybe the proliferation of laws that make everything illegal.
But probably, they just want immunity for their crimes.
But probably, they just want immunity for their crimes.
[deleted]
What is interesting about this cliched defense is that it is actually a malformed statement of the original cliche, "A few bad apples spoil the barrel."
The original cliche refers to a phenomenon where overripe or rotten apples release ethylene gas, which is a ripening agent. This ethylene gas will accelerate the ripening/rot of nearby apples. If you are not vigilant in weeding out the bad apples, the rot will rapidly spread and soon there will be no good apples left to rescue.
Human "bad apples" don't release ethylene gas, but they corrupt their peers nevertheless. When a good cop backs the cover story of his corrupt cop partner, he becomes a bad cop as well. When prosecutors take up arms in defense of their corrupt prosecutor peers, they become no better than the initially targeted. If school administrators allow a bully to have his way for too long, then everybody else sees that they can get away with it too and before long you have daily fistfights behind the school at the end of the day.
Institutions that have had widespread unchallenged corruption for decades rarely need keyhole surgery, they need amputations.