Prosecutors are the most powerful people in the criminal justice system. As sentencing guidelines and mandatory sentencing have diminished the influence of judges, prosecutors have filled the void.
Prosecutors have an enormous amount of discretion. A prosecutor can decide who gets charged; who gets a favorable plea; who goes to trial; and who walks with a slap on the wrist. Some reform-minded practitioners have complained that prosecutors’ laser focus on obtaining convictions and securing prison sentences are a major reason for the soaring cost of mass incarceration.
There are an estimated 2,400 prosecutors’ offices across the country. The biggest threat to the authority of prosecutors is from within. New prosecutors are getting elected and bringing with them new ideas and a departure from the old mantra “tough on crime.”
In Ferguson, Missouri - rocked by the unrest following the killing of Michael Brown - Wesley Bell, a Ferguson city councilman, who worked with the Department of Justice on the federal consent decree to reform the police department, decided to run for district attorney.
He beat seven-term incumbent Bob McCulloch who refused to indict the police officer who killed Brown. According to the ABA Journal, under McCulloch’s watch, the Department of Justice “issued a scathing report that held the Ferguson Police Department accountable for a sustained and egregious pattern of racial profiling and abuse.”
In Orange County, Florida, Aramis Ayala pulled-off an upset victory over an incumbent making her the first African American state’s attorney in Florida’s history.
Just two months after taking office, Ayala announced that her office would no longer seek the death penalty, arguing it was costly, inhumane and did not deter violent crime or promote public safety. Florida Governor Rick Scott challenged her prosecutorial discretion. Ayala sued, challenging Scott’s authority to remove cases from her jurisdiction, but she lost in the Florida Supreme Court. According to the ABA Journal, her office instituted a seven-attorney panel to review all first-degree murder cases to determine whether the death penalty would be appropriate. She won’t run for reelection in 2020.
Larry Krasner unexpectedly won the district attorney’s seat in Philadelphia. He had been a public defender and a civil rights attorney, often taking on the police.
Krasner instituted immediate reforms, according to the ABA Journal. He announced the office would no longer prosecute sex workers with fewer than three prior offenses; would not prosecute marijuana possession cases; and would not seek cash bail for low-level offenses.
Some current prosecutors are not accepting reform as inevitable. The district attorney’s office in San Diego has proposed that plea bargains include a provision that the defendant forego any future benefit from criminal justice reform measures - including legislation or court decisions that might reduce sentences.
There is no question that a defendant could waive his right to appeal in exchange for a plea deal. However, the defendant knows the strength of his case and the specific rights he is giving up. The district attorney in San Diego is asking defendants to give up a right or privilege not yet known.
Robert Weisberg, a criminal law professor at Stanford University, told The Marshall Project that the deals could raise constitutional questions.
Pleas must be knowing and voluntary and it is not clear if a person can give up a right that does not yet exist.
“This one is pushing the envelope as far as it can go,” Weisberg said. “It’s a pretty slick and aggressive prosecutorial move.”
The actions of the San Diego District Attorney’s Office may soon run afoul of the separation of powers. The California legislature is considering a Bill that would prohibit prosecutors from forcing defendants to waive yet unknown rights in exchange for a favorable plea.
If such a law is enacted district attorney’s will be foreclosed from seeking such waivers.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.