Prosecutors Unbound

By A. G. Moore 5/31/2013
Adult Incarceration Statistics USA
U.S. Bureau of Justice
Public Domain on WikimediaAn uproar followed recent reports that the IRS selectively targeted groups for review. Senator Olympia Snow of Vermont declared that if true, these reports are “chilling”. And the chill runs deep, because every American is answerable to the tax agency, which operates in a kind of parallel universe. Tax investigators and tax courts assess fines and penalties independent of other authority. Generally, only when IRS demands are satisfied can appeal to a court outside its purview be made. So people are understandably distressed by the suggestion that this government behemoth has abused its power.What’s curious to me is that people fear the power of the IRS and yet tolerate with little complaint an even greater government threat, one about which there is no dispute and one which operates in the open every day. This is the the practice of DAs across the county to bully defendants out of basic 6th Amendment rights.In a March 2012 Opinion piece in the New York Times, civil rights lawyer Michelle Alexander reported: “More than 90 percent of criminal cases are never tried before a jury“.  In a 2004 PBS Frontline article, an even more startling statistic was cited: “…nearly 95 percent of all cases resulting in felony convictions never reach a jury”. The Sixth Amendment to the Constitution of the United States guarantees a defendant the right to a speedy, public trial before a jury of peers. And yet, most of us can be certain that if we are charged with a crime, we will not enjoy this Constitutional guarantee. Why not?The general answer, is because we’re not paying attention. Most people think the criminal justice system is something that will never significantly touch their lives. Unlike the IRS, which reminds us yearly of its reach, the criminal justice system is relatively selective in choosing targets. For example, a 2006 Department of Justice report stated that 71% of convicted violent felons were black or Hispanic–this despite the fact that during the time these statistics were collected, whites comprised the largest segment of the U. S. population. My argument here is not about whether non-Caucasians are unfairly targeted; that will be the subject of another blog. My discussion today is about why most Americans don’t care that abrogation of 6th Amendment rights has been enshrined as routine practice in U. S. courts.How does the plea business work? Most of us have seen it depicted on TV. The prosecutor comes up with a laundry list of offenses that can be justified by statute. Maximum terms for each potential offense are added up and a daunting figure is dangled before the defendant. This is what can happen to you, the defendant is told, if you go to trial–but there’s a way out. Plead to a lesser offense, save the state the trouble of trying you and guarantee the prosecutor one more “win” to add to his conviction statistics.Unfortunately, for once, TV reflects reality. Either the defendant gives up the right to trial before a jury of peers, or the defendant faces a long and financially ruinous prosecution. At the end of this process, the defendant is promised, if convicted,  the prosecutor will ask for the harshest possible sentence. Even the innocent quake before such threats and are inclined to be “realistic”. Realistic, in this case, means pleading guilty to a crime not committed because the alternative is unthinkable.And so the plea mill proceeds. Speedy, yes. And public. But where’s the jury? Where are the peers?If this issue seems remote from you, it is not. Tolerating the routine abridgment of Sixth Amendment rights is like living with a pet cobra in your midst. Maybe the snake hasn’t bitten in the past, but the potential for calamity is always present.If you don’t think it’s a bad idea to live with a poisonous reptile, perhaps you can be persuaded by another argument: Blood has been shed to protect rights guaranteed by the Constitution. Don’t we have an obligation to at least speak in defense of that document?

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