Do Prosecutors Have Too Much Power? (8/20/12)

The New York Times today has a Room for Debate feature where prominent scholers debate whether prosecutors have too much power.  Do Prosecutors Have Too Much Power? (NYT Room for Debate 8/19/12), here  The debate subject is introduced as follows:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.) 

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power. When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

Here are blurbs for the "debaters" offerings:

Prosecutors’ Overreaching Goes Unchecked
ANGELA J. DAVIS, AUTHOR, "ARBITRARY JUSTICE"
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. 

Judgment Requires Power and Vice Versa
SAMUEL W. BUELL, FORMER FEDERAL PROSECUTOR
Proving sophisticated crimes requires far-reaching statutes and the leeway to use grand juries, charges and agreements for testimony. 

The Problem With Mandatory Minimums
RACHEL E. BARKOW, NEW YORK UNIVERSITY
Far from eliminating disparity by curbing judicial discretion, mandatory minimums simply shift power to prosecutors. 

The Right to Appeal Is an Issue of Fairness
NANCY GERTNER, FORMER JUDGE
You can’t bargain away your right to counsel; you shouldn’t be allowed to bargain away your right to appeal. 

Limit Control Over Charges and Sentencing
PAUL CASSELL, FORMER PROSECUTOR AND JUDGE
We can and should take modest steps to ensure that the power prosecutors exercise does not encroach on the functions of the other branches

The uses and abuses of the prosecutors' power -- often called prosecutors' discretion -- is a constant feature in federal practice generally and federal tax crimes / white collar  practice specifically.  Focusing on the tax crimes area, the various crimes that can be marshaled to support tax charges are many and overlapping, thus permitting great power / flexibility in charging decisions.  While, in  some respects, the Sentencing Guidelines and Booker discretion take away much of the potential for abuse from discretion as to charges, they do leave untouched broad areas of the prosecutors' discretion / powers that can be brought to bear.  The discussion among these debaters is highly recommended.