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Abuse of Power in the Prosecutor's Office
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19334 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
6 / 1991 |
4,049 Words |
| Author
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Bennett L. Gershman
Bennett L. Gershman is professor of law at Pace University. He
is the author of Prosecutorial Misconduct and several articles
on law dealing with such topics as entrapment and police and
prosecutorial ethics. For ten years, he was a prosecutor in
New York. |
The prosecutor is the most dominant figure in the American criminal justice system. As the Supreme Court recently observed, "Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. [The prosecutor has] the power to employ the full machinery of the State in scrutinizing any given individual." Thus, the prosecutor decides whether or not to bring criminal charges; whom to charge; what charges to bring; whether a defendant will stand trial, plead guilty, or enter a correctional program in lieu of criminal charges; and whether to confer immunity from prosecution. In jurisdictions that authorize capital punishment, the prosecutor literally decides who shall live and who shall die. Moreover, in carrying out these broad functions, the prosecutor enjoys considerable independence from the courts, administrative superiors, and the public. A prosecutor cannot be forced to bring criminal charges, or be prevented from bringing them. Needless to say, the awesome power that prosecutors exercise is susceptible of abuse. Such abuses most frequently occur in connection with the prosecutor's power to bring charges; to control the information used to convict those on trial; and to influence juries.
The prosecutor's charging power includes the virtually unfettered discretion to invoke or deny punishment, and therefore the power to control and destroy people's lives. Such prosecutorial discretion has been called "tyrannical," "lawless," and "most dangerous." Prosecutors may not unfairly select which persons to prosecute. But this rule is difficult to enforce, and the courts almost always defer to the prosecutor's discretion. In one recent case, for example, a prosecutor targeted for prosecution a vocal opponent of the Selective Service system who refused to register, rather than any of nearly a million nonvocal persons who did not register. The proof showed that the defendant clearly was selected for prosecution not because he failed to register but because he exercised his First Amendment rights. This was a legally impermissible basis for prosecution. Nevertheless, the courts refused to disturb the prosecutor's decision, because there was no clear proof of prosecutorial bad faith. Many other disturbing examples exist of improper selection based on race, sex, religion, and the exercise of constitutional rights. These cases invariably are decided in the prosecutor's favor. The reasoning is circular. The courts presume that prosecutors act in good faith, and that the prosecutor's expertise, law enforcement plans, and priorities are ill suited to judicial review.
Unfair selectivity is one of the principal areas of discretionary abuse. Another is prosecutorial retaliation in the form of
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