By Angela Davis
Angela J. Davis is a professor of law at American University. She is a former director of the D.C. Public Defender Service and the author of “Arbitrary Justice: The Power of the American Prosecutor.”
Published in The New York Times on August 19, 2012
Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those crucial decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges. When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers.
Unchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more.
Equally problematic is the fact
that the charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone. If a prosecutor treats two similarly situated defendants differently — charging one but not the other or offering a better plea offer to one — it is almost impossible to challenge such differential treatment. The lack of transparency in the prosecution function also leads to misconduct, like the failure to turn over exculpatory evidence — a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.
We live in a democracy in which we hold accountable those to whom we grant power, but we have fallen short when it comes to prosecutors. State and local prosecutors are presumably held accountable through the electoral process, but few voters know enough about the prosecution function to make a meaningful decision at the ballot box. When prosecutors run for office, they don’t talk about their charging and plea bargaining policies (if such policies even exist). With a few notable exceptions, most prosecutors run on a “tough on crime” message, providing little, if any, information about anything else. There
is even less accountability on the federal level where U.S. attorneys are appointed by the president.
The Supreme Court has consistently deferred to prosecutors in a series of cases, including claims of race-based selective prosecution and the failure to turn over exculpatory evidence. Bar counsel offices rarely bring charges against prosecutors who have violated ethical rules.
Unchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more. Prosecutorial decisions often result in a loss of liberty and even life. We must do a better job of holding prosecutors accountable — at the ballot box and through bar counsel prosecutions, when appropriate.