LAW AND ORDER DILEMMA: WHO CHECKS 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 (and no relation to the more famed liberal
activist Angela Y. Davis).

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 (and most likely a wrecked life) 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
(especially when there's strong media interest, or photogenic
victims). Sometimes prosecutors overcharge grossly so they can wring
heavier plea bargains out of defendants. Or adopt a "don't ask, don't
tell" policy toward potential police abuses in the arresting phase.

Views on class and race, even unconsciously, lead prosecutors to make
shoot-from-the-hip decisions 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.

Voters have little idea of how prosecutors are actually handling cases.

Legislatures (and Congress) pay scant attention beyond frequently
bolstering prosecution powers.

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 prosecutors to perform.

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.