WHO CHECKS THE PROSECUTORS?

With a recent uptick in crime, tough prosecutors who are ready to
convict and imprison perpetrators are likely to be more popular than
ever. But a warning flag is being hoisted by American University law
professor Angela J. Davis, past director of the District of Columbia
Public Defender Service.

Prosecutors, notes Davis, are "the most powerful officials in the
criminal justice system" -- more so even than judges. Why? "The
charging and plea-bargaining power they exercise almost predetermines
the outcome of most criminal cases. Over 95 percent of all criminal
cases are resolved by a guilty plea."

Consider a person arrested for having a quantity of drugs on them.
Depending on the amount, the prosecutor can charge simple possession
(a misdemeanor), or possession with intent to distribute (a felony
that in most jurisdictions means a mandatory prison sentence). So
it's the prosecutor, through his charge and plea-bargaining powers,
who really decides prison time for the defendant, or not.

The most serious systemwide issue, argues Davis in her forthcoming
book, "Arbitrary Justice: The Power of the American Prosecutor,"
isn't the isolated, fairly rare case of a prosecutor coercing
witnesses, fabricating evidence or consciously targeting racial minorities.

Rather, it's the lack of controls on, or accountability for, the
everyday decisions of prosecutors. Their legal responsibility isn't
just to represent the state in seeking convictions; it's to pursue
justice. But too often, Davis asserts, prosecutors exercise their
discretion "haphazardly at worst and arbitrarily at best, resulting
in inequitable treatment of both victims and defendants."

There's the "win-win-win" ethos in many prosecutors' offices --
elected prosecutors and their staffs out to show how tough they are
on crime, or how eager to impose death penalties in heinous cases.

Views on class and race, even unconsciously, lead prosecutors to make
shoot-from-the-hip decisions easily at odds with true justice, Davis
asserts: "I saw it all the time in the D.C. system. A rich kid comes
in (though few are arrested) with parents and family lawyer,
explaining 'Little Johnny has a drug problem and let's put him in a
program, not lock him up.' The prosecutor usually agrees. But a poor,
black or Latino kid comes in on a parallel drug case, maybe with a
public defender, and the prosecutor figures -- 'I can't let you back
into the neighborhood; I'll send you to jail.' "

Davis also pinpoints how appointed U.S. attorneys, pursuing the
country's "war on drugs," have focused relentlessly on convicting and
incarcerating even small-time neighborhood drug dealers and their
girlfriends and family members, especially from inner-city
neighborhoods, even on the scantiest of evidence. Federal drug
prosecutions tripled between 1981 and 1990.

Under our system, all officials wielding government power should be
and are subject to checks -- but we've ended up, Davis asserts,
"giving prosecutors a pass" -- no effective control by voters,
legislatures or the judiciary itself.

The U.S. Supreme Court has severely circumscribed conditions under
which prosecutors' judgment can be questioned at all, referring cases
to states' attorney disciplinary authorities that are themselves
known to be weak. From 1970 to the mid-1990s, one study found, there
were only 44 cases nationwide in which prosecutors faced disciplinary
hearings of misconduct; even then, a reprimand was generally the
worst punishment.

So what's to be done? Prosecutors themselves have traditionally
resisted oversight. The public has been inundated with television
programming that justifies prosecutors going right up to the edge on
ethics and the law to get the "bad guys." The American Bar
Association publishes standards of behavior for prosecutors, but the
strictures have no teeth -- they're just "aspirational," Davis notes.

Davis would have national, state and local bar associations conduct
in-depth investigations to determine the adequacy of current
prosecutorial misconduct controls, and possible reforms. She'd have
bar associations set up state and/or local prosecution review boards
- -- not only to receive specific complaints brought by the public, but
to undertake random reviews of prosecutions and (with colleges and
universities) launch surveys to reveal discriminatory practices by
race or class.

The idea is that an outside eye could discourage arbitrary,
hard-to-justify choices by prosecutors without chilling the
essential, fair law enforcement we all depend on.

Against the formidable, entrenched power of today's
federal-state-local prosecutorial systems, any prospect of
significant culture reform seems remote. But if we're ever to dare a
start, Davis offers a group of eminently reasonable first steps.