aTypical Joe: a gay New Yorker living in the rural South
Wednesday, November 28, 2007
Activist judges or willfull prosecutors?
This quote from the AJC’s story on Josh Widner’s plea deal merits emphasis:
Constitutional law expert Robert Shapiro said Floyd’s decision to clear the way for Widner’s release was highly unusual. It showed the discretion prosecutors have in finding a fair result.
“The fairness in the system may depend on prosecutors following the principle of fairness,” said Shapiro, a professor at Emory University law school.
Conservatives have been incredibly successful at promoting the construct of “activist judges.” Worse, they have successfully codified it into onerous limits on judicial discretion to right obvious wrongs. Liberals should not just fight back this challenge, they should take on willful prosecutors. We need a justice system that includes real safeguards against willful and/or discriminatory prosecutionS.
The indisputable fact is that the vast majority of all cases prosecuted never get to court. They are, instead, settled in negotiated plea bargains. And the decision of how, what and whether to prosecute is decided entirely through Prosecutorial Discretion:
Courts recognize a prosecutor’s broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine and in part because “the decision to prosecute is particularly ill-suited to judicial review.” In the absence of contrary evidence, courts presume that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner. So long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests within her discretion. A prosecutor has broad authority to decide whether to investigate, grant immunity, or permit a plea bargain, and to determine whether to bring charges, what charges to bring, when to bring charges, and where to bring charges. [...]
There are other limits to a prosecutor’s discretion, and the judiciary has a responsibility to protect individuals from prosecutorial conduct that violates constitutional rights. Such conduct usually involves either selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process.
Emphasis mine. It’s time that liberals right the wrong of willful and discriminatory prosecutors and do it in a manner similar to - and with as much vehemence as - the way big ‘C’ Conservatives have taken on activist judges.
Richard Moran, a professor of sociology and criminology at Mount Holyoke College, has documented that there is malicious prosecution:
My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel.
It’s time we on the Left do something about it!
