Games Prosecutors Play

The majority of prosecutors, police officers, and federal law enforcement agents are probably fair, ethical, and even compassionate public servants. But arrogance, self-righteousness, and a tendency to push people around are occupational hazards in law enforcement. Consider what Americans have learned in the past year.

Racial profiling is common on the nation's highways and streets and in its airports. State troopers and local police routinely harass and occasionally assault black and Latino drivers and male residents of inner-city neighborhoods, while U.S. customs officials single out racial minorities for degrading strip searches. Innocent people languish for years on death row because of police or prosecutorial misconduct. People guilty of minor, nonviolent offenses, or no offenses at all, are imprisoned for years by federal prosecutors who seek convictions at all costs, misleading grand juries, intimidating witnesses, encouraging perjury by informants, and suppressing exculpatory evidence.

You don't have to read ACLU newsletters or low-circulation progressive magazines to be aware of these abuses; they have been covered by the mainstream press. In the past year, NBC's Dateline ran a story about the targeting of black females by customs officials at Chicago's O'Hare airport, and the New York Times reported on racial profiling and the periodic exonerations of inmates on death row. Regional newspapers have also highlighted abuses by state and local prosecutors: a recent series of reports by the Chicago Tribune uncovered hundreds of state homicide cases involving serious misconduct by prosecutors nationwide. Time has expounded upon the failures and gross injustices of mandatory minimum sentences. PBS's Frontline has dramatically exposed the corrupting influence of informant testimony, routinely used in federal cases. And, in the wake of the Starr investigation, news stories, editorials, and op-ed pieces about prosecutorial misconduct, especially at the federal level, have appeared in national and local papers ranging from the Wall Street Journal to the Pittsburgh Post-Gazette. If Americans have less reason to fear each other now that violent crime has declined, they have more reason to fear the law enforcement bureaucracy.

The Injustice System

This is, however, a bureaucracy that the public has demanded and helped shape by electing demagogues who promised to be tough on crime. In the past two decades, with apparent public approval, Congress has enacted laws greatly expanding federal criminal jurisdiction, restricting appeals of convictions, imposing harsh mandatory sentences on nonviolent offenders, and encouraging the states to pass their own mindless "three-strike" laws. These have resulted in life imprisonment for three-time felony offenders, regardless of the seriousness of their crimes. In a notorious California case, for example, a 27-year-old man was sentenced to 25 years to life for swiping a slice of pizza.

Some attribute the recent decrease in violent crime to an increase in the prison population occasioned by such laws [see Nicholas Confessore's "Prisoner Proliferation," page 69]. But violent crime is affected by numerous factors, notably demographic trends and police practices; the effects of imprisonment on crime are highly debatable. Prison terms increased dramatically during the 1980s-but while violent crime decreased in the early 1980s it rose in the latter half of the decade. A 1993 National Research Council report concluded that the lengthened sentences in the 1980s had little effect on crime, adding that "a 50% increase in the probability of incarceration would prevent twice as much violent crime as a 50% increase in the average term of incarceration."

But criminal justice policy has not reflected much rational analysis and is not simply focused on crime control. It is also an anti-vice crusade. Repressive criminal laws and practices initiated in recent years are weapons in an ongoing, consistently ineffective war against drugs-a war against some drugs, that is, like crack cocaine and marijuana. Racial profiling was designed to catch drug offenders, and mandatory minimums were designed to punish them. Popular opposition to illicit drugs has always been fueled in part by racism (marijuana was originally targeted partly because of its associations with blacks and immigrant Mexicans), and the government war against drugs quickly turned into a government war against its citizens-a war against some citizens, that is, notably (but not exclusively) racial minorities. While African Americans constitute 12 percent of our general population, they represent more than 50 percent of our prison population. As David Cole observes in his incisive new book, No Equal Justice, African Americans make up an estimated 14 percent of illicit drug users, but they are subject to 55 percent of all drug convictions and 74 percent of all sentences for drug offenses.

Progressives have long held that if these figures were reversed-if middle-class whites were targeted by police and prosecutors and incarcerated in such grossly disproportionate numbers-the public would revolt. In fact, the revolt would start long before the imprisonment of so many whites. The recent attention paid to misconduct by federal prosecutors has been prompted partly by the spectacle of white women-Susan McDougal, Julie Hiatt Steele, Monica Lewinsky and her mother Marcia Lewis-being prosecuted or coerced by Kenneth Starr. Concern about federal prosecutorial abuses may also reflect an increase in federal prosecutions of technical, white-collar crime. Criminal defense attorney Harvey Silverglate reports that growing numbers of businessmen are being indicted for what might have once been considered "sharp" (but legal) business practices.

I'm not suggesting a majority of voters will knowingly tolerate injustice as long as it does not appear to threaten them. I suspect, instead, that many people simply don't recognize injustice unless they can identify with its victims. Fear of crime and prejudice about the use of drugs are stronger than logic and political consistency, and people blessed with no firsthand knowledge of the justice system have probably been unaware of its abuses. Many people seemed genuinely shocked by the conduct of the Starr team-but as defense attorneys quickly observed, Starr's investigation was typical of many federal prosecutions and considerably less abusive than some.

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Lies, Damned Lies, and Perjury

Prosecutorial misconduct is endemic. According to Arnold Burns, deputy attorney general in the Reagan administration, the culture of prosecution has lost its "sense of proportion" as prosecutors aggressively use their "full artillery" against minor offenders. A chilling 1998 series in the Pittsburgh Post-Gazette by investigative reporter Bill Moushey documents the resultant abuses. (His detailed accounts of numerous cases involving highly unethical, sometimes illegal prosecutorial conduct are available on the Post-Gazette's Web site at www.postgazette.com.) Moushey spent two years reviewing 1,500 allegations of prosecutorial misconduct; he uncovered dozens of cases in which government stings "trapped the innocent or exaggerated the misconduct of suspects," hundreds of instances in which prosecutors violated the law by failing to provide the defense with exculpatory evidence, and hundreds of cases in which they "tolerated or encouraged perjury."

Often the concealment of exculpatory evidence and reliance on perjured testimony are related: prosecutors sometimes fail to disclose incentives for their witnesses to lie or evidence that witnesses have lied on the stand. In one case examined by Moushey, prosecutors concealed the fact that their star witness was testifying under a false name and had a prior perjury conviction. In another, they did not disclose that their witness, an imprisoned cocaine dealer seeking a reduction in sentence, had bragged to fellow inmates about providing false testimony. The violations involved in cases like these are not mere legal technicalities; they bear directly on factual questions of guilt or innocence.

That these are old stories to people familiar with the system underscores the pervasive corruption they represent. "The entire criminal justice system knows that perjury is the coin of the realm," remarks Eric Sterling, president of the Criminal Justice Policy Foundation. And Moushey's investigation confirmed that perjury drives the prosecutions of federal cases: "People's homes are invaded because of lies. People go to prison because of lies. People stay in prison because of lies, and sometimes, bad guys go free because of lies." Federal prison inmates "routinely buy, sell, steal, and concoct testimony, then share their perjury with federal authorities in exchange for a reduction of their sentences." In addition, as Ken Starr's pursuit of Susan McDougal suggested, prosecutors often invite perjury by threatening witnesses whose grand jury testimony does not support the government's case. Some defense attorneys, like Boston-based Harvey Silverglate and Andrew Good, will not represent informants or even people inclined to plead guilty, because of the likelihood that they're trading perjured testimony. In these cases, Silverglate says, "You have to teach clients not just to sing but to compose."

This is how low-level offenders, minor players in a criminal enterprise, sometimes incur long mandatory sentences; they have no information to trade, they decline to lie, and they are the last people standing when the music stops. A recent edition of Frontline told the awful story of Clarence Aaron, a 23-year-old black male college student with no criminal record, sentenced to three concurrent life sentences without the possibility of parole, for conspiracy to distribute crack cocaine. According to Frontline, no drugs were introduced into evidence in Aaron's case, even though the actual amount of drugs allegedly involved in an offense determines the sentence. Aaron's conviction was based on the testimony of his alleged co-conspirators-childhood friends, including his first cousin. Apprehended dealing drugs, they all turned on Aaron, whose role in the "conspiracy" was chauffeur. All of the co-conspirators had prior convictions; one, the self-proclaimed "kingpin," is serving a 12-year sentence, two received sentences of less than five years, and one escaped with no jail time.

It's worth stressing that this was not necessarily the jury's notion of justice. Jurors are not informed of the sentences dictated by their guilty verdicts, and one of the jurors in the case told Frontline that he expected Aaron to receive a relatively short sentence, perhaps three to five years. "He seemed a pretty promising boy," the juror recalled.

U.S. Attorney J. Don Foster, who presided over Aaron's case, disagrees. Interviewed by Frontline, he seemed satisfied with the outcome and unconcerned that his witnesses had enormous incentive to lie. Although they were perhaps "guiltier or more culpable" than Aaron, "they helped solve the case," Foster remarked. "We try to go up the ladder, if we can, starting with the little fish and going up the ladder to the big fish. But sometimes you've got the big fish and you need to come down the ladder." It is a perverse system of justice that condemns little fish to serving life without parole, while the big fish go free. But, in Foster's view, Aaron was appropriately punished for refusing to cooperate and demanding a trial: he suffered the consequences of his own "arrogance." From this perspective, innocence (or negligible guilt) is hardly relevant. What matters is not offending the prosecutor.

Divine Right of Prosecutors

How did prosecutors attain such fearsome power? It has been building for at least 30 years. Since 1970, Congress has steadily increased federal jurisdiction over crimes that used to be the province of the states, while the number of federal prosecutors has increased from 3,000 to 8,000. According to a recent report by the American Bar Association, 40 percent of all federal criminal laws enacted since the Civil War date back only as far as 1970.

This dramatic expansion of prosecutorial power was not accompanied by checks on its exercise. The law generally immunizes prosecutors from civil liability for bringing frivolous cases or for their misconduct at trial-so people who have been wrongly tried or convicted usually have no civil remedies if misconduct in their cases is uncovered. This increases the need for judicial monitoring of prosecutorial practices, but the Supreme Court has deferred to prosecutors, encouraging lower courts to uphold convictions-even in cases involving substantial violations of a defendant's rights. The Court has also held that constitutional rights enjoyed (at least in theory) by defendants at trial do not apply in grand jury proceedings. Witnesses and potential targets of investigations are not even allowed to bring their lawyers into the grand jury room when they testify. As a result, grand juries-which were designed to protect citizens from prosecutorial abuse-now function as arms of the prosecutors: virtually all defendants called before federal grand juries are indicted.

While the Court has declined to police prosecutors effectively, Congress has enacted legislation that makes misconduct by prosecutors practically inevitable. In the late 1980s, the passage of mandatory minimum sentences for drug offenses (as well as federal sentencing guidelines) greatly increased the power of U.S. attorneys (by eliminating judicial discretion in determining sentencing) and encouraged the use of informant testimony. Mandatories were enacted largely for their symbolic value-demonstrating a congressional commitment to eradicating drugs-and the public was given virtually no information about their consequences. In fact, it's likely that lawmakers had little information to share and little understanding of the effects of legislation enacted with no deliberation. Eric Sterling, counsel to a House subcommittee on crime in the 1980s, reports that mandatories were passed in haste, with "no hearings, no consideration by the federal judges, no input from the Bureau of Prisons . . . even DEA didn't testify . . . the whole thing was cobbled together with chewing gum and baling wire. Numbers were picked out of the air." (Sterling characterizes his own involvement in the formulation of these laws as "the greatest tragedy of my professional life.")

Mandatory minimums are written in stone, but they don't actually eliminate discretion in sentencing; they simply transfer discretion from judges to prosecutors. In the past, judges usually determined sentences, balancing recommendations from prosecutors, defense attorneys, and probation officers. Now, in cases controlled by federal sentencing guidelines enacted in 1984, federal judges impose sentences after consulting a complicated sentencing grid that allows them very limited discretion. In cases controlled by mandatory minimums, judges have absolutely no sentencing discretion. Mandatories generally require judges to impose long prison terms, even in cases involving first-time, nonviolent, low-level offenders that call for probation. Thus the prosecutor effectively chooses the sentence when he or she chooses the charge. Prosecutors traditionally enjoy virtually unfettered discretion in deciding whether or how to charge-thus mandatory minimums give them unfettered discretion to sentence.

The power to determine sentences enables prosecutors to win easy convictions by targeting people for prosecution and offering them reduced sentences in exchange for testimony. Defense attorneys lament that this is tantamount to bribery; indeed if defense lawyers were to engage in similar behavior-offering to compensate witnesses for testimony-they would violate federal bribery law. Last year, this argument briefly prevailed in federal court. In U.S. v. Singleton, a three-judge panel of the Tenth Circuit Court of Appeals reversed the conviction of Sonya Singleton for money laundering and conspiracy to distribute cocaine, ruling that the prosecutor's promise of leniency to the alleged co-conspirator who testified against her was prohibited by the federal penal code.

The law is clear: "Whoever . . . directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both." The three-judge panel sensibly concluded that the plain language of this statute extends its bribery prohibition to U.S. attorneys, who are clearly included in the pronoun "whoever." More importantly, the Court held that the purpose of the statute-the prevention of wrongful convictions based on false testimony-required its application to federal prosecutors. A reduced prison sentence is surely something "of value" to a witness, providing strong incentive to lie. "It is difficult to imagine anything more valuable than personal physical freedom," the Court observed, adding, "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen."

That people who enforce the law should obey the law seems uncontroversial, but it's not surprising that the Singleton decision evoked howls of protest from prosecutors, lawmakers, and some editorial writers: it threatened thousands of convictions based on informant testimony; it outlawed routine practices, deeply embedded in the system. So, some six months after its initial ruling in Singleton, the Tenth Circuit issued a "never mind." The Court reheard the case, en banc (meaning the entire Court heard the case this time), and in a nine-to-three decision held that U.S. attorneys were not bound by federal bribery laws. "We simply believe this particular statute does not exist for the government," the majority declared, stressing that grants of reduced sentences in exchange for testimony were "long-standing practices . . . deeply ingrained in our criminal justice system." In fact, the Court added, the use of accomplice testimony procured by promises of leniency was so ingrained that it "has created a vested sovereign prerogative in the government . . . it has acquired a practice akin to the special privileges of kings."

Too Much Justice?

Once, deference to the rights of kings inspired revolution. Today, the more prevalent a prosecutorial practice, the more likely it is to be respected by the courts, regardless of its fairness or potential for abuse. Perhaps the grossest example of this judicial passivity was the 1986 case of McClesky v. Kemp, in which the Supreme Court declined to invalidate the death penalty despite strong statistical evidence of race discrimination in its application. The Court observed that if it recognized evidence of discrimination in capital cases, it would have to recognize it in non-capital cases as well, and the system would be severely disrupted. As the dissenting Justice Brennan observed, the Court harbored "a fear of too much justice."

Judicial fear of disrupting the criminal justice system has been partly responsible for growing misconduct by prosecutors. While judges have lost sentencing authority in many cases, they retain the power to reverse convictions when prosecutors break the law and abuse defendants' rights. But they invoke that power rarely.

This abdication of authority by courts that were designed to defend due process and protect individuals against government excesses is rationalized by a "harmless error" rule, enunciated by the Supreme Court. In a series of cases, the Court has held that even gross violations of a defendant's constitutional rights do not require a reversal of the conviction if the violation (or "error" by the prosecutor) was harmless-if, considering other evidence, the appellate court decides it did not affect the verdict. In other words, defendants essentially have to show that but for the "error," they would have been acquitted.

Initially the harmless error rule applied only to relatively minor prosecutorial lapses that did not involve fundamental constitutional rights. But in 1967 the Court held that constitutional violations could also be considered harmless; since then it has ruled that even the admission of a coerced confession obtained in violation of the Fourth Amendment could qualify as harmless. Indeed, according to Chief Justice Rehnquist, in the context of a criminal prosecution, "most constitutional errors can be harmless."

That is a remarkable statement from someone sworn to defend the Constitution. It implies that the Bill of Rights is merely hortatory and needn't actually be enforced. It suggests that constitutional rights have only instrumental value, that there is no inherent, normative value in, say, the right to prevent police officers from invading your home for no good reason or beating you up to obtain a confession.

Even if you accept the notion that in a criminal trial constitutional rights are not sacrosanct, you would be hard-pressed to uphold a conviction based partly on a coerced confession. A confession obtained at the point of a gun (metaphorically speaking) is not terribly reliable; it isn't likely to lead us to truth. Yet jurors are apt to find any confession persuasive, especially if they're not fully informed of its circumstances. So how can an appellate court find that the admission of an involuntary confession did not affect the verdict and raise the strong possibility of an unjust conviction? And, what is an appellate court doing reviewing evidence of guilt anyway? First-year law students learn what Supreme Court justices sometimes forget: as a general rule, findings of fact are the province of trial courts; appellate courts are supposed to determine questions of law.

The law provides that prosecutors have an obligation not to rely on illegally obtained evidence and not to encourage police violations of our Fourth Amendment rights. The law provides that prosecutors must reveal all evidence exculpating the people they seek to convict. The law provides that we, the people, have rights against self-incrimination that can only be waived voluntarily. The law provides that we have a right to confront witnesses testifying against us. The judiciary's job is to uphold these laws, not condone their persistent violations. Judges are obliged to punish prosecutors for breaking the law, to ensure that trials are reliable and fair, and that law enforcement officials investigating and prosecuting crime don't oppress the citizens they're supposed to protect.

The "harmless error" rule formulated by the Supreme Court reveals the Court's priorities: it is less concerned with upholding the law than with upholding convictions, saving the states the time and money of re-trying people whose convictions were wrongly obtained. The rule, after all, is not an attempt to free prosecutors from exacting compliance with mere technicalities. It frees them from respecting fundamental rights designed to prevent wrongful convictions. And it should be noted that the Court has clung to legal technicalities when they bolstered convictions. In a 1993 death penalty case, Herrera v. Collins, the Court dismissed an appeal based on a strong claim of innocence, noting, "A claim of 'actual innocence' is not itself a constitutional claim," suggesting that states might execute innocent people, so long as they observed the technicalities. As the late Justice Blackmun observed in his dissent, the majority's ruling in this case was "perilously close to murder."

If the Supreme Court helps establish the climate in which federal prosecutors operate, it's hardly surprising that many now seem to feel liberated from constitutional constraints or even common notions of morality. The Justice Department, as well, encourages and protects their arrogance. The department's internal watchdog, the Office of Professional Conduct, is considered by critics negligent in monitoring prosecutors and excessively lenient in punishing misconduct. A notorious Justice Department policy, implemented by former Attorney General Richard Thornburgh, exempted U.S. attorneys from state ethics rules applying to everyone else, including, most notably, the rule requiring prosecutors not to deal directly with people represented by counsel. This policy has been nullified by recent federal legislation, the Citizens Protection Act, which the Justice Department vigorously and angrily opposed. One congressional aide remarks that U.S. attorneys "get hysterical about being subjected to external ethical standards. They don't want to have to live by rules."

It is past time for them to learn that in a relatively civilized society, prosecutors as well as citizens need to respect the rule of law, democratically imposed. There is hope that Congress may yet act to curb prosecutorial excesses. Massachusetts Democrat William Delahunt, a highly regarded former prosecutor, is drafting a grand jury reform bill that would recognize the rights of suspects during grand jury proceedings, applying constitutionally mandated rules of evidence to grand juries and allowing defense attorneys to accompany witnesses into the grand jury room. Delahunt and others are also considering repealing mandatory minimum sentences. Proposals for repeal might find considerable support in Congress, if members dare to express their private opinions about mandatories in public. Criminal justice reform will require political courage, not usually evident in presidential election years. Besides, following the lead of the Clinton administration, many Democrats have spent the last eight years marketing a repressive law-and-order agenda, proving that they can trample individual rights with the resolution of right-wing Republicans.

Still, strange alliances could form. Conservatives who are wary of federal bureaucracies could turn their ire against the apparatus of federal law enforcement, as they have turned it against the IRS. Liberal reformers could appeal to our patriotism. Expose gross prosecutorial abuse, and many people recoil, as the Starr investigation showed. It is simply un-American. People who resist imbuing presidents with kingly prerogatives may hesitate to confer them on prosecutors.