Justice Robert Jackson once warned that “[i]f the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: That he will pick people that he thinks he should get, rather than cases that need to be prosecuted.”
Overcriminalization and the dangers of prosecutorial discretion may finally be seeping into the public’s consciousness. The Supreme Court recently heard arguments that deal with the constitutionality of the “intangible right to honest services” federal statute, which is often used to prosecute public officials for corruption — including former Illinois Gov. Rod Blagojevich, D.
As Justice Antonin Scalia observed, the law “invites abuse by headline-grabbing prosecutors.” Justice Stephen Breyer remarked that 140 million of 150 million American workers could probably be prosecuted under the law, given its vagueness.
Given the high costs of defending oneself and the wide discretion prosecutors have to add charges that could strengthen sentences, defendants often have no choice but to plead guilty and take the best deal possible.
These problems are not limited to the federal level either. Local prosecutors can be even more susceptible to shifting public whims, which often leads to politically driven prosecutions.
There was Durham, N.C., District Attorney Mike Nifong who heeded calls from Duke University’s bloodthirsty faculty and charged several of its lacrosse players with raping a black stripper. Nifong’s egregious pursuit of the case eventually led to his disbarment.
Former New York Attorney General Elliot Spitzer was well known for using New York’s Martin Act to prosecute alleged corporate fraud. The president of the U.S. Chamber of Commerce called his public bullying tactics “the most egregious and unacceptable form of intimidation we’ve seen in this country in modern times.”
Then there was Travis County, Texas, district attorney, Ronnie Earle, who indicted former House Majority Leader Tom DeLay in 2005 on money laundering charges that stemmed from restrictions on corporate campaign finance donations — limitations struck down by the Supreme Court’s recent decision in Citizens United v. FEC.
In the 1970s, Travis County established an office to prosecute public corruption called the Texas Public Integrity Unit, run solely by the Travis County district attorney (Earle for the last 30 years), yet able to prosecute Texans anywhere across the state.
The potential for abuse is exacerbated by the fact that Travis County is one of the only Democratic counties in the state, meaning the DA can pursue enemies like DeLay without having to answer to a statewide electorate. The office may indeed violate the Constitution’s Equal Protection Clause and is currently being challenged in federal court by the Florida-based Everglades Legal Foundation.
Before indicting DeLay, Earle also indicted eight corporations for donating to DeLay’s political action committee but was allegedly willing to drop the charges against the corporations in return for large payments to the Center for Deliberative Democracy at Stanford University. Rick Reed, formerly of Earle’s office, warned him that “attempting to negotiate a financial contribution to a nongovernmental entity as part of the settlement of a pending criminal action, does not pass the ‘smell test.'”
Unfortunately, many prosecutors seem to reserve their keenest sense of smell these days for the TV cameras. While this problem may still seem abstract and remote to many, it should be a cause of concern for Americans everywhere.
After all, in a society where justice is supposed to be blind, its citizenry should not be in the dark about what the law means.
Brett Joshpe is an attorney in New York City and co-author of the book “Why You’re Wrong About the Right.”
