Curb Imperial Power of Prosecutors

The love-hate relationship Americans have with criminal prosecutors celebrated a watershed on April 12 when a federal jury in Arkansas acquitted Whitewater figure Susan McDougal of obstruction of justice and did not convict her of criminal contempt for again refusing to testify before independent counsel Kenneth W. Starr’s grand jury.

McDougal’s defense had been that she believed a vindictive prosecutor was trying to coerce her into giving false testimony. Whether the jury fully accepted this story or just believed this much-prosecuted woman had been punished enough is hard to know. But in either event, the jury’s verdict obviously was a protest against prosecutorial overkill.

One of the strongest impressions observers have taken away from the past year of Starr’s pursuit of President Clinton was the enormous power possessed by a prosecutor who can repeatedly bring criminal charges against his enemies and drop charges against those who do his bidding. These are not the powers of just a special prosecutor. The awesome powers to bring or drop criminal charges are the standard operating equipment of the prosecutor in the United States. Any charge can be dropped without the review of another legal official. Any charge can be reduced in the plea-bargaining process. The cooperative are rewarded, and the recalcitrant are punished.

There is a constant temptation to abuse power because of the prosecutor’s two legal roles. On the one hand, he is supposed to be a public servant and officer of the court dedicated to evenhanded justice. On the other hand, he is a competitor in an adversary system, fighting against a defense attorney to secure convictions and get maximum punishment. It is a bit like coaching a Little League baseball team and also serving as the umpire. It is only human nature that the strike zone looks a little wider when your son is pitching.

The problem of controlling prosecutorial power had always been important, but a series of recent legal changes have concentrated even more power in the office of the prosecutor in California. Until 1976, prison terms were determined by parole authority. Now much of this is in the hands of the prosecutor, who has even greater power because the charge he selects or takes a plea to will determine the length of the prison sentence. And mandatory minimum sentence laws like “three strikes” remove judicial discretion to choose a prison term and give it instead to the prosecutor, who can choose to use three strikes and produce a 25-year sentence or to ignore three strikes and produce probation or a short sentence.

A similar concentration of power is taking place where statutes provide for “automatic transfer” from juvenile to criminal court for some offenses. This power, which prosecutors and judges used to share, is now solely with the prosecutor. The state’s attorney now is the absolute monarch of criminal justice in California.

Given this, there should be a persistent effort to control prosecutorial misconduct and abuse of power using administrative, political and systemic strategies. Administrative controls are those imposed by a chief prosecutor to monitor the conduct of assistants. Personal supervision and standards for making discretionary decisions are the significant management tools available to create and enforce standards. There has been substantial progress in instituting and enforcing administrative standards and supervisory controls in prosecutor’s offices over the last generation, including in the Los Angeles D.A.’s office. That is the good news.

Controlling abuse of prosecutorial power has been less successful, particularly where the head of the office is willing to cut corners in the name of “law and order.” Overkill can be a politically popular strategy in many places, so the democratic process may not function to punish abusive prosecutions that are conducted with political sophistication. Here is where judicial review is necessary. A system of checks and balances in the power to set punishments in California would help maintain controls on prosecutorial power. Current proposals to remove a juvenile court judge’s power to rule on a prosecutor’s motion to transfer a youth to criminal court would not reduce discretion, it would simply ensure that the prosecutor holds all the power.

Creating statewide agencies such as sentencing commissions or parole authorities is one way to temper prosecutorial power. Restoring judicial power to select from a number of criminal sentences also would help. Even with checks and balances, prosecutors will remain the center of the power in the system. But the imperial powers they have under the current system are a temptation to abuse that deserves sustained attention.