The prosecutor is the most powerful figure in the American criminal justice system.  This is particularly so because, as the Supreme Court has recognized, the criminal justice system in the United States today “is for the most part a system of pleas, not a system of trials.”  In the state courts where over ninety percent of criminal cases are prosecuted, ninety-four percent of the convictions are the result of guilty pleas, and ninety-seven percent of federal convictions are the result of guilty pleas.  In this system of pleas, prosecutors have enormous advantages and often dictate not only the crimes defendants are convicted of, but the sentences that are imposed.

Although the state and federal governments supposedly have adversary systems of justice, only wealthy individuals and corporations can afford to pay for hundreds – perhaps thousands – of hours of representation by experienced trial lawyers and the cost of investigation, expert witnesses and other expenses of defending a criminal case within the adversary system.  Poor people accused of crimes are often unrepresented or represented by lawyers who know little or nothing about them and the charges against them, can devote only a few minutes to their cases, and have no access to investigators or experts.  For the poor, the system is inquisitorial and the inquisitor is not a neutral judicial officer, but the prosecutor.

Governments maintain well staffed offices that specialize in the prosecution of cases.  Many of those offices have within them units that specialize in certain types of cases in order to bring greater expertise to the prosecution of certain crimes, such as homicides, sex offenses, driving under the influence of alcohol and other complex or unique cases.  Prosecutors regularly appear in court and many judges rely on their recommendations on issues ranging from pretrial release to sentencing.  Some judges even rely on prosecutors to write their orders.

Prosecutors utilize local, state and federal law enforcement agencies to investigate cases, on federal and state crime laboratories to conduct scientific tests and present expert testimony, and on government mental health experts to examine the accused.  They can subpoena witnesses to testify before grand juries and produce all documents and records relevant to the case.  They have a power that no other litigant has – the ability to reward witnesses for providing information or testimony by granting immunity from prosecution, dismissing or reducing criminal charges, or informing sentencing judges of  their cooperation.  Prosecutors and law enforcement agencies can plant informants in the cells of people accused of crimes in hope of obtaining incriminating information.  They can retain expert witnesses as needed to assist in preparing and presenting their cases.  These investigations are the only ones conducted in the overwhelming majority of criminal cases against poor defendants.

In most jurisdictions, prosecutors are not required to reveal much of what they know about the case to defense counsel.  This control of access to information distorts – if not eliminates – the ability of the adversary system to function fairly and properly.  Most jurisdictions allow prosecutors to withhold almost everything and conduct “trial by ambush.”  Prosecutors have repeatedly failed in their most basic responsibility regarding fairness, failing to disclose exculpatory evidence.

Some prosecutors make plea offers conditioned upon the defendant not filing any motions or seeking discovery.  The Supreme Court has held that prosecutors are not even required to disclose exculpatory evidence to a grand jury before it decides whether to issue formal charges or to defense counsel before entry of a guilty plea.  Prosecutors may even demand that a defendant release officials from civil liability in exchange for dismissal of charges.

The exclusive access to information and complete, unbridled discretion in charging and plea bargaining gives prosecutors enormous power in resolving cases and enables them to influence and often determine sentences.  Prosecutors decide whether to charge, what to charge, whether to charge in state or federal court or both, whether to allow defendants to enter diversion programs, whether to agree to pretrial release as part of a plea bargain, and whether to grant immunity.

Prosecutors can overcharge defendants in order to increase their bargaining power in obtaining a guilty plea.  For example, a prosecutor may seek the death penalty in hope of obtaining a guilty plea and a sentence of life imprisonment.  If the defendant rejects the plea offer, the prosecutor will take the case to trial and obtain the death penalty, if possible, even though the prosecutor did not believe that the death sentence was required in the case.  Prosecutors may seek other enhanced penalties and mandatory minimum sentences to coerce the defendant into pleading guilty for a less severe sentence.

In jurisdictions with sentencing guidelines, prosecutors influence and often control the length of sentences by what they charge and, in the federal courts, whether they agree to notify the sentencing judge that the defendant has rendered “substantial assistance.”  In all types of cases, prosecutors may agree to reduce the charges, withdraw their notice to seek enhanced sentences, agree to a specific sentence or make some other concession in exchange for the defendant’s entry of a guilty plea and waiver of a trial by jury and any appeals.  Defendants who reject the plea offers pay the “trial tax.”  If convicted, they receive far more severe sentences than they would have received if they accepted the plea bargains.  Judges are often left with little or no sentencing discretion.

This enormous prosecutorial power, employed ruthlessly in plea bargaining and determining sentences, was upheld by the Supreme Court in Bordenkircher v. Hayes in 1978.  There, a prosecutor offered Paul Hayes a sentence of five years in prison for forging a check for $88.30 and warned Hayes that if he rejected the offer the prosecutor would file repeat offender papers requiring a mandatory sentence of life imprisonment.  Hayes declined the offer and the prosecutor carried out his threat.  He prosecuted Hayes at trial and obtained a conviction and the mandatory life sentence.  The Supreme Court upheld the prosecutor’s actions, calling them part of the “‘give-and-take’ of plea bargaining.”  Sentencing laws passed since the Court’s decision in that case have given prosecutors even more power to coerce guilty pleas and obtain severe sentences.  The power of the judge has been greatly diminished.

An inquisitorial system masquerading as an adversary system with all power concentrated in the prosecution does not produce just results.  Even the most conscientious prosecutor lacks critical information about the accused – his or her version of events as well as personal characteristics relevant to culpability or punishment – necessary to make informed and objective decisions.  Prosecutors evaluate cases not as objective inquisitors, but as adversaries and politicians.  Many are elected on tough-on-crime platforms and campaign on their ability to convict large numbers of people.  Their responsibility to see that justice is done is often overshadowed by their desire to be reelected.  Defense counsel for poor people accused of crimes are often relegated to the role of messenger, taking plea offers from prosecutors to clients so the clients can be processed in assembly line fashion.

Prosecutors exercise this enormous power with virtually no oversight or accountability.  They have absolute immunity for their work in prosecuting cases and may not be held liable even when their failure to train their assistants results in suppression of exculpatory evidence and conviction of innocent people.  The Supreme Court has made it impossible for a defendant to prevail on a claim of selective prosecution, and refused to require prosecutors to reveal the basis for their charging decisions even when they produce racial disparities.  Although prosecutors are, in theory, bound by the ethics rules promulgated by each state, the reality is that sanctions or other disciplinary measures are almost never imposed on prosecutors.  As is often the case, unchecked power sometimes leads to abuse.

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