Prosecutors have taken over as “rulers” of the criminal justice system, curbing the influence of judges, a federal judge says.
Draconian laws in recent years have shifted sentencing powers to prosecutors, wrote U.S. District Judge Jed S. Rakoff in an article for the Northwestern University Law Review.
The change evolved because “defendants fear the immense sentences they face if convicted at trial,” the article noted.
Within the U.S. criminal justice system, prosecutors’ narratives are always one-sided, Rakoff wrote. He stated prosecutors are given near-total power over the resolution of criminal cases — to the point that the sense of equality is lost and “abuses are inevitable.”
Rakoff emphasized that most prosecuting attorneys are dedicated public servants whose “primary aim and satisfaction is to bring criminals to justice.” Despite their commitment to public safety, they exemplify a very narrow point of view of the American judicial system.
During the 20th century, plea bargaining became an accepted feature of the U.S. criminal justice system.
In the 1970s, the U.S. Supreme Court accepted, as constitutional, a defendant’s guilty plea to second-degree murder, “even when he asserted he was innocent of any murder but was pleading guilty to avoid the likelihood of a conviction of the capital offense of the first-degree murder.”
As a result, plea bargaining has become the ultimate source of ever-increasing power for prosecutors, Rakoff contends. He points out that plea bargaining came about as a result of a prosecutor charging defendants with more criminal offenses than judges and juries could possibly handle.
“To deal with this overload, prosecutors increasingly offered criminal defendants the opportunity to plead to lesser charges, and the ‘plea bargain’ was born,” he said.
According to Rakoff, prosecutors rather than judges are determining sentences in the majority of these cases. “Furthermore, not only are these sessions secret, one-sided, and lacking judicial oversight, but also the results vary materially from prosecutor to prosecutor.”
Today, about 98 percent of state and federal criminal cases do not go to trial.
Currently, there are over 2.2 million people incarcerated in the U.S. — most being young men of color. The U.S. incarcerates more people, per capita, than any other industrial country in the world.
A growing recognition of the costs and negative effects of mass incarceration has created bipartisan efforts to reduce the nation’s prison population. Strategies include the repeal of mandatory minimum sentences and career offender laws as well as a considerable reduction in the length of time recommended in sentencing guidelines.
Rakoff is pessimistic about support from the new federal administration or from state legislatures whose members know that it is still good politics to be “tough on crime.”
An innovative way of handling criminal cases is to change the prosecutor’s role to “advocates,” says Rakoff. He also wants the change so that prosecutors would be required to occasionally serve as defense counsel for indigent defendants. That way, they would see how much power they have in the criminal process.
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