Do New Legal Changes Give Prosecutors a Potentially Dangerous Amount of Power?

A new article in the

Economist

examines how recent legal changes have placed, perhaps, an overabundance of power in the hands of American prosecutors. According to the article, the changes include “an explosion” of cases ending in guilty pleas and a high number of cases in which defendants become informants, speaking out against one another in exchange for deals that will lessen their charges or sentences.

 

The

Economist

reports:

. . . American prosecutors are more powerful than ever before.

 

Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against him are dropped. Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.

 

Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because of harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.

According to the

Economist

, it is perhaps a rise in the number of “incomprehensible” new laws that are providing prosecutors with more latitude to interpret laws as they see fit, enabling them to overcharge defendants, and, in turn pressure them into plea bargaining.

 

In terms of the increase in reliance upon informants to help solicit guilty verdicts, the article says:

The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses,” once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants.

 

Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.

In some instances, prosecutors may actually encourage informants to embellish testimonies for their own benefits, hoping to “parlay courtroom victories into lucrative partnerships at law firms or platforms to run for public office,” says the

Economist

.

 

But these false testimonies can result in real jail time for people who are actually innocent. The article cites a study by Northwestern University Law School’s Centre on Wrongful Convictions which found that “46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by informants — making them the leading cause of wrongful convictions in death-penalty cases.” And data provided by the Innocence Project says that of the 318 Americans exonerated by DNA evidence, 57 involved informants — and 30 entered guilty pleas.

 

Some prosecutors argue that “without co-operation deals and plea bargains. . . the system would buckle under the weight of extra trials.” Others in the criminal justice system, however, are calling for change, demanding reform that would get rid of mandatory-minimum sentences and reduce the prosecutor’s role in plea-bargaining. A number of states are taking action by requiring third-party corroboration of informants’ testimonies, while others no longer permit testimony by informants with drug addiction or mental-health issues.

 


Read the entire article

.