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The bill establishing a nationwide child kidnapping notice system, known as the Amber Alert bill, enjoyed wide bipartisan support and was going to pass. Bills with that kind of momentum always offer a special chance for mischief and this time it came from Rep. Tom Feeney, a right-wing opportunist and former speaker of Florida's House. The amendment he tacked on sharply limited the discretion federal judges have to offer leniency in sentencing. It was signed into law in April.
This win for prosecutors - the bill was vigorously lobbied by Ashcroft's Justice Department and a group of U.S. attorneys' offices - adds to a decades-long trend that has made federal and state prosecutors minor gods within the criminal justice system. Increasingly, by capitalizing on legislatures that want to look tough on crime, prosecutors have succeeded in getting harsh sentences and mandatory minimums written into law. What gets charged these days is pretty much the whole enchilada. The system now rides almost entirely on the prosecutor's judgment, which makes integrity within the profession even more vital.
One has to believe that a significant majority of prosecutors are in their jobs to do justice and not just to add notches to a belt. A win-at-all-costs attitude is irresponsible in any profession, but a particularly dangerous one when the loser has his liberty at stake. When an innocent person is sent to prison the system loses twice: first by destroying the life of someone not culpable and second by leaving a dangerous criminal on the streets to reoffend.
But according to a disturbing new report by the nonpartisan Center for Public Integrity (www.publicintegrity.org) hundreds of prosecutors across the country have willingly bent the rules to obtain convictions in thousands of cases. And for at least 32 defendants, that has meant being convicted of murder, rape and other serious crimes, of which they were innocent.
The center analyzed over 11,000 cases since 1970 where misconduct had been alleged. Its report, "Harmful Error: Investigating America's Local Prosecutors," found a group of 223 prosecutors who cheated to win in 2,017 cases where misconduct led to reversed convictions, reduced sentences and dismissed charges. The misconduct took a variety of forms, according to the center, from "hiding, destroying or tampering with evidence, case files or court files" to "courtroom misconduct," such as "mischaracterizing the evidence or the fact of the case to the court or jury," among a multitude of other practices.
These findings are mirrored in other investigative efforts, such as the 1999 series by the Chicago Tribune that found "nearly 400 cases where prosecutors obtained homicide convictions by committing the most unforgivable kinds of deception. They hid evidence that could have set defendants free. They allowed witnesses to lie. All in defiance of the law."
When prosecutors brush aside reasonable doubt, innocent people get convicted. We know from the dozens of DNA exonerations that this happens more often than we might want to admit. Yet prosecutors have little to worry about by breaching professional ethics. They are immune from civil liability, even when it is clear their tactics railroaded someone into jail. And local and state bar disciplinary committees are notoriously lax in policing their own.
According to the study, only two prosecutors in the last 33 years faced disbarment due to misconduct. Barry Scheck, founder of the Innocence Project, a nonprofit legal clinic that works to get innocent people out of prison, has seen the damaging consequences of this laxity first hand. He believes that stiffening the resolve of state bars is the only way cowboy prosecutors will clean up their acts. "Unless people are disciplined . . . it will never end," Scheck says. "It becomes a way of life for certain prosecutors."
And the problem worsens when the system's other checks don't operate effectively. The grand jury system, for instance, was initially set up to restrain the prosecutor's power, but now operates as a handmaiden. As a Cato Institute paper on the subject said, "overreaching prosecutors have been able to pervert the grand jury, . . . into an inquisitorial bulldozer."
Judges and the courts may be best situated to police abuses, but even they are limited. The system essentially offers prosecutors a way to get away with misconduct. The term is "harmless error," and it means that even the worst abuses committed by prosecutors can be disregarded if a judge believes the trial's outcome would have been the same absent the wrongdoing.
Simply put, the criminal justice system has anointed prosecutors king. For most, that power is used responsibly, to seek justice. For some, though, winning is everything. It is their recklessness that needs to be reined in, and bar associations should take up the challenge.