Making Bad Prosecutors Felons Is A Bad Idea
August 16, 2016 (Fault Lines) – Prosecutorial misconduct is always a fun subject. Who doesn’t like getting fired up about some evil government lawyer hiding evidence that sends an innocent man to jail for years? From Fault Lines to popular culture to federal courts of appeals, it’s a great story.
Orange County, California has caught a good deal of the flak from this new interest in how citizens are sent to prison. Based on recent events, they probably deserve it. The Orange County District Attorney’s Office seems like the poster child for prosecutorial misconduct. And the State of California is responding.
According to the Orange County Register, a new bill winding its way through the California legislature is aimed at fixing this problem once and for all. How? By making the withholding of evidence or falsifying evidence … a felony!
“As a member of the Assembly’s Public Safety Committee, I believe that accountability for California’s prosecutors is critical to ensuring that justice in our courts is truly served,” [San Fernando Assemblywoman Patty] Lopez said Wednesday by email.
The bill is scheduled to go before the Senate Appropriations Committee Thursday. It would boost penalties to between 16 months and three years for prosecutors who violate the law. Current statutes make it a misdemeanor for anyone to withhold or falsify evidence, while law enforcement officers can be charged with a felony.
It’s not just the Orange County DA who triggered this movement. The problem has been growing in California for a while, and it sounds like a real contributing factor is that no one seems to care.
A 2010 study by Santa Clara University School of Law looked at misconduct statewide, concluding: “Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it…The problem is critical.”
Well, if nobody gives a damn about something, the best way to make them care about it is to make it a felony. Crime fighting is all about upping the punishment. Time and time again, we have seen that increasing the severity of punishment is what solves crime. Making something a felony almost always guarantees it won’t happen anymore.
Just kidding. Read the links. This is a stupid idea. It’s not going to fix prosecutorial misconduct. In fact, it will probably have the opposite effect.
Here’s a secret. Not too many criminals engage in a risk-reward analysis before they commit their crime. If they did, they probably wouldn’t commit the crime. It’s not nearly as profitable as the movies make it out to be.
This terrible idea is another step in our country’s insistence on prosecuting every problem away. Whether it’s bad parenting, or bad kids, or bad prosecutors, we just toss the criminal justice system at it and fix the problem. Then when that doesn’t work, we increase the punishment. And when that doesn’t work? We turn a blind eye to it and keep plugging away. The solution just has to be as simple as more jail.
Prosecutorial misconduct is a complex problem. And like Mencken said:
For every complex problem there is an answer that is clear, simple, and wrong.
Exactly what will making prosecutorial misconduct a felony do? You are going to take someone who has so little respect for the criminal justice system they will cheat to get a win, and turn them over to that very same system to teach them a lesson? And make them a felon? How exactly will that work to stop anything?
This law won’t change a thing. Right now, if any lawyer were to falsify or hide evidence, they are in for big trouble. Purely based on the laws and rules we already have, they are subject to discipline up to disbarment. It also sounds like they could already get arrested in California for a crime. It’s just going to now be a more criminal crime, the dreaded “felony.”
If this was a solution, it would already have worked. Who cares about being a felon compared to losing a law license? Your whole livelihood can be taken away. That might actually have some deterrent effect, and it would definitely send a message. And that is already an existing punishment. One that would work, because the best solution to bad prosecutors is to keep them out of the courtroom.
But like the language from the 2010 Santa Clara study says, the problem is bigger than the actual misconduct. It’s the reaction to it. In California, courts have a statutory obligation to report misconduct. In every state, all lawyers, including judges, have an obligation to report misconduct. But no one does. Because no one cares.
The biggest illusion of the criminal justice system is that it exists to protect the rights of defendants. Lawyers who don’t practice there think it’s easy, because the criminal gets all the breaks. Regular people know it’s unfair, because criminals are constantly getting away on little technicalities. The whole system is set up to make sure law enforcement jumps through a bunch of stupid hoops called “constitutional rights” before an evil predator can be locked away forever. It’s shocking anybody ever gets convicted.
Except its nothing like that. The system is actually set up to shuffle people off to jail with as little societal guilt as possible. Who really needs to worry if the wrong guy got imprisoned, as long as we had a pretty trial with a real judge and a real jury and evidence and stuff?
That trial is probably not as fun as it sounds. Judges rule against defendants at every turn, lest those defendants buy into the illusion a trial is a good option for a lowly criminal.
Prosecutors commit misconduct because they can.* They believe they are doing the right thing. They believe they know better than everyone else. And when they get caught, it doesn’t matter because the defendant was probably guilty anyway.
So why are those judges that doing anything about misconduct? Do you really think they are going to start reporting their courtroom buddies to the felony squad? Let them catch a few years in the state prison system for doing God’s work? Of course not.
Until the courtroom referees start reporting bad lawyers to the state ethics authorities, and those authorities start treating a prosecutor like any other unlucky lawyer who finds themselves in the crosshairs of the lawyers’ disciplinary counsel, this problem won’t go away.
Criminal laws have yet to be the answer to any real problem in our culture. They haven’t fixed the drug problem. They haven’t stopped the fraudsters from ripping us all off. They haven’t stopped violence. And they surely aren’t going to stop bad prosecutors from doing bad things.