Opinions on Debatable Issues #12
“You have the right to remain silent … You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” This is what you hear when being Mirandized. Coined and established in 1966, the Miranda warning is one of the steps that the Supreme Court has taken to limit the immense policing and prosecutorial power to protect defendants from an unfair due process. However, despite the Supreme Court’s continuous effort to safeguard the accused’s inalienable rights, the abuse of judicial power by prosecutors still permeates the justice system as they pursue desirable and expedient sentences at the expense of fair trials. In recent discussions of the abuse of prosecutorial power, this controversial issue has been fervidly debated. Some argue that empowering the defenders with financial support ensures a fair due process for defendants, believing that a competent and well-prepared defense lawyer can increase the chance of winning and reduce the pressure for defendants to plead guilty and thereby limit the prosecutor’s power in court. Nevertheless, others insist that only substantial reforms can effectively discipline prosecutors to curb corruption. My view is that the prosecutors’ unlimited power to charge and the lack of public accountability give them a disproportional advantage over defense lawyers even when they have sufficient financial support. Therefore, increasing funds for public defenders is not enough to offset prosecutor power and corruption. Although some might object that underfunded defense departments contribute the most to wrongful convictions, I would reply that more must be done to keep the prosecutors’ power limited and checked. This issue must be addressed because the right to a fair due process is an expressed constitutional entitlement that is fundamental to democracy.
The prosecutor’s power to initiate criminal charges and manipulate courtroom outcomes are not granted to defense lawyers, no matter the funding, so prosecutors can easily pressure the defendants to plead guilty despite their innocence and access to a well-funded defense lawyer. The threats of such extensive and unlimited capability are recognized by many jurists, including prosecutors themselves. Younger Irving, a federal prosecutor, law professor, and judge, asserted in his Memoir of a Prosecutor that prosecutors can “convene a grand jury, issue warrants for arrest, grant immunity in exchange for favorable testimony, initiate criminal proceedings, and dismiss charges”, making their power to destroy defendants “virtually limitless”. On one hand, a prosecutor can file a co-conspirator criminal charge against any witness who refuse the prosecutor’s request to testify against the defendant. To avoid charges, the witness usually concedes. On the other hand, if a witness or a co-conspirator agreed to help the prosecutors by presenting incriminating testimony, the prosecutor can easily dismiss their potential charges in return. Co-conspirators are, thus, incentivized by the reward of escaping criminal charges to point fingers at each other, giving the prosecutor his desired victory. Knowing that prosecutors can build a strong case against them with all the witness testimonies that make getting a verdict of innocence almost impossible, the defendants are compelled to agree to the plea bargain even though they might be innocent. Able to both galvanize and intimidate people into supporting their cases, prosecutors usually have the upper hand whereas the defense lawyers cannot use their assigned power to “convince” any witnesses to testify in their favor. Since the corruption of prosecutors stems from the unlimited power granted to them explicitly and exclusively by the Constitution, funding the defense lawyers cannot prevent the prosecutors from taking advantage of their legal abilities because the fundamental role and faculty of prosecution remain unchallenged.
Due to the strong protection that prosecutors receive against criminal sanctions, the issue of lacking public accountability of prosecutors is beyond the power of defense lawyers to address, making abuse of power almost inevitable. Published in The Economist, “The Kings of the Courtroom” discloses the abuse of prosecutorial powers in the US. In one case, prosecutors who intentionally withheld evidence that is potentially beneficial to the defendant were found guilty of spoliation of evidence but were only “suspended for 15-40 days [before the] penalty was overturned on procedural grounds”. The prosecutors in this case perpetrated hideous acts of violating the profession’s rules and ethical standards. Spoliation of evidence, which is intentional or reckless altering, withholding, or damaging evidence in legal procedures, usually incurs serious consequences, including false convictions of innocence and coercion into pleading guilty. The insignificant consequence of a short period of suspension is incompatible with the severity of the crime committed. When the courts rule in favor of the prosecutors and protect them from penalty for abusing their power, the prosecutors are encouraged and empowered to continue manipulating the evidence to their advantage with little worry of the misconduct being uncovered. Therefore, the epidemic of tampering evidence has grown rampant. Often, defense lawyers cannot discern and address the spoliation of evidence to ensure a fair trial because prosecutors can prevent them from accessing all relevant information with their delegated powers of prosecution. Regardless of how well-funded the defenders are, they must negotiate with prosecutors from a position of weakness and dependence. Meanwhile, the prosecutors’ unlimited power to charge allows them to utilize trial penalty, which is charging defendants with sentences more than ten times severe in trial than offered in plea bargains, as explained by Alan Dershowitz, a professor emeritus at Harvard Law School, in WSJ Message. Consequently, either the defense lawyer goes to the trial and gets a guilty verdict, or he recognizes the slim possibility of winning and subsequently advises his clients to take the plea bargain offered by the prosecutor to avoid a potential trial penalty. The problem of prevalent abuse of power by prosecutors is not solved, as a result. While funding the defense lawyers complement their efforts, they still rely on prosecutors to obtain crucial information on the case, making them vulnerable to any shady strategies that prosecutors may employ to win.
Some contend that if advised by competent counsel in a plea bargain by offers of leniency, then the falsely condemned would decrease substantially. In the Reason Foundation, C.J. Ciaramella, an advocate for funding defendants, presents compelling evidence that demonstrates the injustice incurred by the underfunding of defense attorneys: “33 of the [Louisiana’s] 42 public defender offices started turning away cases” in 2016 because “they no longer had the resources to handle”. As a result of the deficiency, Louisiana has “the highest incarceration level in the country and the second-highest wrongful conviction rate”. Louisiana’s issue demonstrates the correlation between underfunded defense lawyers and unjust trial outcomes, suggesting that we must empower the defenders. It is incontestable that without defense lawyers, normal citizens do not possess the necessary legal knowledge to defend themselves, leading to more wrongful convictions and heavier sentences. It would be a mistake, however, to assume that merely funding the public defense lawyers can eradicate prosecutorial corruption. Empowering defense lawyers does not curb the power of prosecutors in any means, allowing the use of plea bargain and trial penalty to continue pressure defendants into submission. Defense lawyers cannot report prosecutors for misconduct in court nor change the proposed criminal charges. Defenders, whose priority is to prevent, or at least minimize, criminal charges for their clients, usually opt for plea bargains and not the truth because of the almost impenetrable prosecuting “privilege” that makes defending extremely difficult. When criticizing plea bargains for their unconstitutionality, Alan Dershowitz uses the example of actresses Felicity Huffman and Lori Loughlin, who hired competent defense lawyers but both chose to not go to trial when told by prosecutors that “If it’s after trial, we would ask for something substantially higher”, which implies a trial penalty. In this case, private, independent lawyers, who are hired by wealthy defendants, chose to avoid a trial penalty by agreeing to plea bargain, showing that the prosecutors can remain their upper hand in court when defense attorneys are not underfunded. Defense lawyers cannot escape the pressure of the trial penalty when unable to suppress the prosecutors’ power to manipulate charges as they wish. Therefore, sufficient funding and resources can help defendants with making a stronger case but not offsetting the advantages that prosecutors have, which are inherently secured by their role as defined by the Constitution and upheld by the US criminal justice system.
Limited by the length of this article, solutions to addressing prosecutorial abuse of power are not explored. However, some substantial reforms, such as instituting a third party magistrate, who acts as a legal mediator, to limit the power of prosecutors and keep them accountable have the potential to effectively curb the rampant abuse of prosecutorial power. To safeguard all citizens’ rights to a fair due process, future studies should examine the constitutional role of prosecutors, from which their unlimited power stems, and consider potential judicial amendments to fundamentally keep prosecutors disciplined. Defending democracy and civil rights requires continuous effort; curbing prosecutorial abuse of power is one crucial step of it.
- Ciaramella, C.J. “The Disappearing Sixth Amendment.” Reason, Jun. 2017, https://reason.com/2017/05/07/the-disappearing-sixth-amendme/. Accessed 15 Oct. 2020.
- Dershowitz, Alan M. “Most Plea Bargains Are Unconstitutional.” WSJ Newsletter, 5 Nov. 2019, https://www.wsj.com/articles/most-plea-bargains-are-unconstitutional-11572998068. Accessed 10 Oct. 2020.
- Ferguson-Gilbert, Catherine. “It is Not Whether You Win or Lose, It is Now You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?” California Western Law Review, vol. 38, no. 1, 2001, https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1176&context=cwlr. Accessed 5 Nov. 2020.
- “The kings of the court room.” The Economist, 4 Oct. 2014, https://www.economist.com/united-states/2014/10/04/the-kings-of-the-courtroom. Accessed 13 Oct. 2020.
- “What Are Your Miranda Rights?” MirandaWarning.org, http://www.mirandawarning.org/whatareyourmirandarights.html. Accessed 11 Nov. 2020.
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