Recently, the hashtag #defundthepolice went viral. Police brutality, the militarization of our police forces, and the disproportionate rate of minority arrests and prosecution is an anathema to a democratic way of life. Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. Prosecutors have more power in the criminal justice system than any judge, any court, any police officer, or any attorney.
I had the opportunity to represent a man who lost everything from 5-years of malicious prosecution, which is still ongoing. His person, property and liberties were subject to systematic destruction. Heavily armed police unlawfully searched and seized his property, and then prosecutors charged him with 16-felonies. Armed guards were placed on 450-acres of farmland and wilderness. His constitutional and personal rights were violently taken from him. All 16-felonies were dropped after defense lawyers revealed corruption, perjury and concealed evidence, but by that time the client had lost everything and was homeless and on food stamps. His property was sold in a subsequent “receivership” case brought by the County, tantamount to a civil forfeiture. He is now homeless and living on food stamps.
There is a reason why people are angry at the police. Police brutality and racism have certainly played a large role in oppressing the poor and people of color. Yet, prosecutors actually play a more critical role in mass incarceration and the implementation of the death penalty in this country. Arrests get attention because they are most often caught on camera. But no such lens lies on the prosecutors. After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused.
They can recommend whether the defendant should be released on bail, and can recommend a bail amount. They can adjust the charges, making them more or less severe, felonies or misdemeanors and enhancements. They can decide whether a child is charged as a juvenile or an adult. They can add or subtract counts. They can also convene grand juries to determine which charges to pursue. The prosecutor can also decide not to press charges at all.
“With 94 prosecutors at the federal level and more than 2,400 at the state, county, and city levels, these lawyers play a significant role in shaping the criminal justice system. In many cases, spurred by punitive policies that create incentives to put people behind bars, they have fed the epidemic of mass incarceration plaguing the United States.” (Brennan Center for Justice)
While prosecutors have unlimited financial budgets that are funded by tax dollars, the accused, often disproportionately poor or of minority status, are not so fortunate. The majority of people charged with crimes in this country are not professional criminals but rather live in chronically depressed economic conditions, where crime is a matter of circumstance rather than choice.
Although one is presumed innocent until proven guilty in the United States, over 90% of criminal prosecutions result in plea bargains and guilty pleas. This isn’t because 90% of the accused are guilty. It’s simply because the cost of prosecution, personal, financial and existential is so overwhelming to the accused, most people would rather plead guilty than face uncertain trials and lengthy incarceration. Despite the right to counsel guaranteed under the 6th Amendment, most municipalities do not even have public defenders offices and defendants must rely on court appointed defenders chosen from the pool of attorneys at large.
So even in the freest country in the world, criminal prosecution is a stacked game. Moreover, unlike other areas of the legal system where individuals and corporations are subject to a wide swath of liability, regulations, criminal penalties, and fines, criminal prosecutors enjoy “absolute immunity” in their profession. Thus, there is little to no prosecutorial oversight in this country. For a person that is wrongfully accused or wrongfully prosecuted, there is little to no civil recourse against prosecutors who can conceal evidence, inflate charges, and destroy people’s lives with absolute impunity.
For the poor or those already teetering at the edge, criminal prosecution results in homelessness and jail. The harsh, biased and unforgiving system of justice in this country results in 1/3 black men with felony convictions. It was only until recently states began reforming mass incarceration resulting from prosecution of petty crimes such as marijuana possession. But this is not enough. Even while violent crime and crime in general has declined sharply over the last few decades, the rate of the incarceration went dramatically up, largely due to the Nixon and Reagan era war on drugs and Clinton’s 1994 Crime Bill which which added decades of mandatory minimum sentences for drug crimes, taking away power from judges, and leaving it squarely in the hands of prosecutors.
It goes without saying that the demographic representation of prosecutors in this country does not reflect the demographics of this country.
- 95 percent of elected prosecutors are white;
- 79 percent are white men;
- three in five states have no black elected prosecutors;
- 14 states have no elected prosecutors of color at all;
- just 1 percent of elected prosecutors are minority women.
(source: The Atlantic)
With all the talk about the lack of corporate diversity, little attention is given to reforming the demographics of prosecutors in this country. Thus, #BlackLivesMatter is not only a cry to end bigotry, hatred and injustice in our law enforcement, but it is also a plea for prosecutorial reform.