Prosecutors Have All The Power

Jun 25 2014

If you ask a layperson who has the power to decide whether someone should go to jail or not, he may say that this particular power lies with the police. If you ask a more educated layperson the same question, he may tell you the power lies with the judges. They’d both be wrong. The real power in the United States criminal justice system lies with the prosecutor. The true power of the prosecutor is best summed up by former United States Supreme Court Justice (and former prosecutor) Robert H. Jackson. Justice Jackson famously stated:

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

The police have the right to make arrests, but if the arrests aren’t supported by evidence, the accused is quickly let go and has a legal cause of action against the officers. Judges are more like referees in a sporting event. They can enforce the rules, but can do little else. The real power lies with the prosecutor. The reason this power is so great is because the prosecutor can choose whom to prosecute and for what. Moreover, he can choose the charges to bring. Even if the prosecuted person is ultimately acquitted of the charges or is otherwise vindicated, his life is almost always irreparably damaged by the prosecution. He is probably broke and his reputation is ruined. Any semblance of justice for a wrongful prosecution takes 25 years or longer to be achieved.

So why do I bring this up? Because the Manhattan District Attorney’s Office is acting unreasonably in its prosecution of two routine cases that happen to be in the press. In one instance, a couple of guys BASE jumped (safely) off the Freedom Tower in the middle of the night and landed on a desolate street. In the other, a guy drove around the city a little too quickly and videotaped it. The Manhattan District Attorney’s Office proudly states that it treats all of its cases equally irrespective of whether they are in the press or not. I’ll let the reader draw his or her own conclusions as to whether this is true or not. But just to be clear, New York has a law that makes BASE jumping off of a building illegal. It is, however, only a misdemeanor. Here, these guys are charged with Burglary. Burglary is a felony. Moreover, not only is this Afroduck guy charged with a crime when all he really did was speed, but the Office is asking for 6 months jail. Meanwhile, this guy gets no jail for throwing bleach on an anti-sex abuse activist.

When I previously wrote about the Freedom Tower jumpers, I predicted the DA’s Office would come to its senses. I based that assumption on the fact that I used to work in the office. I was wrong. Hopefully, they’ll still get justice. Even if it has to come from a jury instead.

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