aTypical Joe: a gay New Yorker living in the rural South

Thursday, September 20, 2007

From “activist judges” to taking on “willfull prosecutors”

Former state representative E. Wycliff Orr, a lawyer in Gainesville, GA, has an OpEd in the AJC today headlined, For a change, Georgia needs to choose justice. Starting with the quoted question, “Where’s the justice?” he looks at the outcomes in the Genarlow Wilson case and the Troy Davis case now before Georgia’s Supreme Court and calls for a more empowered judiciary:

For all the cries against “judicial activism” and for mandatory sentences that tie judges’ hands, do we really want judges who are reduced to the rigid, ritualistic application of “one-size-fits-all” outcomes? Do we want judges rendered powerless to create fair results based on the inevitable differences between cases?

Meanwhile, in Jena, LA right now there is underway what has the potential to be one of the most important civil rights protests in recent history:

Fanon Brown, 16, is one of [the protesters]: He told [Richard G. Jones, a reporter for The New York Times] that he left Philadelphia at 3 a.m. Wednesday and got to Jena 27 hours later. He is here, he says, not just for the six black boys who were arrested for beating a white classmate after a series of incidents in the town, but for the larger things he said the case represents about race and justice in America:

I can’t believe that after all these years we still have deformities in our justice system. We have to free the Jena Six but we’ve got to go home and take care of this racism thing.’

What all of these cases have in common is a prosecutor who has used his discretion (and in all of the cases mentioned, the prosecutor was a white male) to bring charges that are demonstrably out of whack with what is the norm; or, rather, the norm for similar offenses committed by similar white individuals.

Conservatives have successfully thrust the “activist judge” moniker into the popular lexicon. Worse, they have successfully codified it into onerous limits on judicial discretion to right obvious wrongs. Liberals should not just fight back this challenge, but they should take on willful prosecutors who fight on beyond all evidence, reason and rationality and build a justice system that includes real safeguards against willfully discriminatory prosecutions.

The indisputable fact is that the very large 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 willfully 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. To those who point to Mike Nifong as evidence that the system works, I point to Nifong, too, to contrast him with David McDade.

Nifong is not the only out of control rogue prosecutor. The question is whether the only reason we caught him, the only reason we stopped him, is because he went after three white guys at the eighth ranked university in the nation.

David McDade went after a 17-year-old black kid engaged in the kind of behavior that is objectionable and makes most of us uncomfortable but is, unfortunately, more common than we’d like to admit. He successfully prosecuted that kid for consensual sex and fought fiercely against reconsideration.

That fierce fight includes McDade calling the kid a rapist even after a jury found him innocent of the charge. That fierce fight meant that when the girl’s mother spoke out in defense of Genarlow, she was subject to a visit that reeks of intimidation from an assistant DA and an investigator with a tape recorder. That fierce fight lead McDade to widely distribute a sex tape - an ethically dubious act intended to preserve the conviction and turn public opinion against the accused - that was judged by the U.S. Attorney in Atlanta to be a violation of federal child pornography laws so quite possibly, a criminal act. 

Jimmy Carter is only the most prominent among those to observe:

The racial dimension of the case is likewise hard to ignore and perhaps unfortunately has had an impact on the final outcome of the case… There is some statistical evidence reported by various non-profit agencies in Georgia, leading me to believe that white minor defendants in the same circumstances as Mr. Wilson’s receive far lesser forms of punishment.

In the Boston Review last summer, Glenn C. Loury asks, Why Are So Many Americans in Prison?

Despite a sharp national decline in crime, American criminal justice has become crueler and less caring than it has been at any other time in our modern history. Why?

The question has no simple answer, but the racial composition of prisons is a good place to start. The punitive turn in the nation’s social policy-intimately connected with public rhetoric about responsibility, dependency, social hygiene, and the reclamation of public order-can be fully grasped only when viewed against the backdrop of America’s often ugly and violent racial history… This historical resonance between the stigma of race and the stigma of imprisonment serves to keep alive in our public culture the subordinating social meanings that have always been associated with blackness. Race helps to explain why the United States is exceptional among the democratic industrial societies in the severity and extent of its punitive policy and in the paucity of its social-welfare institutions.

Slavery ended a long time ago, but the institution of chattel slavery and the ideology of racial subordination that accompanied it have cast a long shadow. I speak here of the history of lynching throughout the country; the racially biased policing and judging in the South under Jim Crow and in the cities of the Northeast, Midwest, and West to which blacks migrated after the First and Second World Wars; and the history of racial apartheid that ended only as a matter of law with the civil-rights movement. It should come as no surprise that in the post-civil rights era, race, far from being peripheral, has been central to the evolution of American social policy.

The political scientist Vesla Mae Weaver, in a recently completed dissertation, examines policy history, public opinion, and media processes in an attempt to understand the role of race in this historic transformation of criminal justice. She argues-persuasively, I think-that the punitive turn represented a political response to the success of the civil-rights movement. Weaver describes a process of “frontlash” in which opponents of the civil-rights revolution sought to regain the upper hand by shifting to a new issue. Rather than reacting directly to civil-rights developments, and thus continuing to fight a battle they had lost, those opponents-consider George Wallace’s campaigns for the presidency, which drew so much support in states like Michigan and Wisconsin-shifted attention to a seemingly race-neutral concern over crime.

Whether or not you agree with Loury - and I believe his piece makes a powerfull case - 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.

What Duke and Genarlow and Jena all have in common is willful prosecutorial intent. It’s time we on the Left do something about it!