Justice is not blind but some prosecutors certainly are. Let me explain. I am a huge fan of the show Sunday Morning on CBS. This past Sunday, the lead segment was ostensibly about mandatory minimum sentencing. And while it focused on the extreme unfairness of such laws, it really highlighted the abusive and overreaching power of the prosecutor in our justice system.Justice is not blind but some prosecutors certainly are. Let me explain. I am a huge fan of the show Sunday Morning on CBS. This past Sunday, the lead segment was ostensibly about mandatory minimum sentencing. And while it focused on the extreme unfairness of such laws, it really highlighted the abusive and overreaching power of the prosecutor in our justice system.
What was truly astonishing about the segment were the comments by the Association of Prosecuting Attorneys. In defending these mandatory minimum sentences the following exchange occurred: "It's an invaluable tool for prosecutors and law enforcement to use, because it gives us leverage," said Steven Jansen, who runs the Association of Prosecuting Attorneys. He says that defendants, when faced with harsh mandatory sentences, are more likely to negotiate a plea bargain, avoiding lengthy, costly trials. And the sentencing is more fair, he says.
I find it interesting that truth and justice are absent from his justifications for these draconian laws. Perhaps he should focus on the facts of his case as leverage rather than unjustly harsh sentencing.
Moriarty asked, "When you have these mandatory minimum sentences, aren't you treating the violent career criminals the same way as you are treating the first offenders, the non-violent? They get the same sentence."
"But justice is blind," said Jansen. "And so it doesn't matter what status you are in our society. If you commit these crimes and fulfill the elements for a crime, blind justice will charge you with that. And you should receive equal sentence just as anybody else that committed that same crime."
But then he admits sometimes the wrong people are incarcerated. "Unfortunately, you have these situations where people who think they are innocent decide to go to trial instead of accepting a plea offer, and they end up receiving a more severe sentence than what maybe a gang member or a drug dealer would have taken.”
It was at this point that I wanted to scream at Mr. Jansen. Justice should be blind to factors that have no place in our system – race and ethnicity are prime examples. But it should always account for the circumstances of the crime and the person's past behavior.
This message of prosecutorial abuses is also the focus of an article in the The Economist titled The Kings of the Courtroom: How prosecutors came to dominate the criminal-justice system. The article reminds us that as far back as 1940, the prosecutor has too much power, quoting then Attorney General Robert Jackson: “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.”
And today, innocent people are pleading guilty, primarily because of prosecutors. “Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.”
Many prosecutors wrap themselves in righteousness and cloak themselves as guardians and protectors. And there are many good prosecutors across this country. But when the national voice for prosecutors speaks for them about leverage, power, and blind justice in ways that have nothing to do with true justice, I fear the culture of prosecutors has become corrupted. Leverage, power, blind justice. That is not what I learned in 5th grade civics. I was taught that a prosecutors job is to do justice, not railroad people into harsh, unfair sentences.
(Full disclosure: The reporter for the CBS segment, Erin Moriarty, provides financial support to the Office of the Ohio Public Defender Wrongful Conviction Project through a donation made to the Ohio State University)