Prosecutorial Discretion in the Criminal Justice System (8/3/12)

Just going through a stack of deferred reading today and came to my UVA  Lawyer magazine for Fall 2011 (long overdue).  This issue included some articles in honor of William J. Stuntz, professor at UVA Law.  I did not know him personally, but he seems from these articles like a great guy.

One interesting article is by Cullen Couch titled Criminal "Justice" Demanding Certainty in an Uncertain World, here.  The focus in the article is the systemic pressures in a criminal justice system defined by large measures of prosecutorial discretion to pick and choose who gets prosecuted.  These can result most immediately in the conviction of the innocent but in the uneven application of the law.

First, a quote from Professor Stuntz that starts the article:

“The criminal justice system is characterized by extraordinary discretion — over the definition of crimes (legislatures can criminalize as much as they wish), over enforcement (police and prosecutors can arrest and charge whom they wish), and over funding (legislatures can allocate resources as they wish). In a system so dominated by discretionary decisions, discrimination is easy, and constitutional law has surprisingly little to say about it.”

The article then recounts a wrongful conviction episode involving Frederico Macias, an episode for a phenomenon that is too frequent.  (See e.g., Raymond Bonner, Anatomy of Injustice: A Murder Case Gone Wrong (Knopf 2012), here, a book I found particularly engrossing because it arose in my home town, Greenwood, S.C., Wikipedia entry here,and I knew many of the players.)

Here's the introduction after introducing the wrongful conviction episode:

Federico Macias’s appalling experience on death row represents the illusory reality of all felony cases in the criminal justice system. Whether a case will proceed is utterly in the control of the prosecutor. Their discretion is close to absolute. If the prosecutor does charge, the case will follow a series of stories told by victims and defendants and witnesses, buttressed by forensic evidence, which build a grand narrative as the case navigates a maze of procedural rules. 

The system relies fundamentally on the accuracy and reliability of the data it takes in; “garbage in-garbage out” in computer parlance. From the moment the police handcuff a defendant, information begins to flow into the criminal justice system. Did the police Mirandize the defendant, secure the crime scene, handle the evidence properly, maintain the chain of custody, conduct a proper lineup, obtain a voluntary confession? 

At any point during this journey, luck, circumstance, incompetence, or tainted evidence can send the story seriously off the rails. But once “written” and finalized by plea bargain or trial, the story’s “truth” becomes iconic, practically impervious to legal challenge post-conviction.
Like many professions—medicine comes first to mind—the criminal justice system’s skilled practitioners maintain strict standards of conduct, but the stakes are high. Even the smallest error can have ruinous consequences for individuals, families, and communities. The guilty can be freed, or the innocent jailed, and judges have only a modest impact on the process; plea bargains account for 95% of all felony convictions. If the case does go to trial, judges usually rule only on procedural matters. 

In fact, most felony cases do produce a legally accurate story. Most defendants do get a fair and impartial hearing. But the criminal justice system, like any human endeavor, suffers from frailty and error. Prosecutorial discretion is its core principle and, at times, its most glaring weakness.

The article proceeds from there.  A Good read about the pressures in the criminal justice system, many of which are present in the subset of the criminal tax system.  While criminal tax cases are processed prior to indictment in different ways, they suffer from much of the uncertainty and discretion that tend to create problems in more serious cases of murder and terrorism.