Clive Crook on justice by plea bargain

This column about the recent suicide of Aaron Swartz, who may have been driven to it by zealous prosecutors, pointed out a few things I didn’t know:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. […]

In my conception of criminal justice, the prosecutor’s role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can’t also dispense with judges. […]

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

"There is no one in the United States over the age of 18 who cannot be indicted for some federal crime," said John Baker, a retired Louisiana State University law professor… "That is not an exaggeration." And if a prosecutor should turn his righteous all-powerful gaze on you, you’re done for. In this system, everything depends on the moderation and good sense of prosecutors. […]

Crook ends his column with this:

As a foreigner, I’m surprised that Americans aren’t more alarmed by the workings of their criminal justice system. I don’t know what ought to scare me more about living in the United States–that I might be the victim of a crime (which happens), or that this ferocious prosecutorial system might one day turn its wrath on me. I’d rather be mugged than threatened with years in jail for something I didn’t even know was a crime. Is this justice system actually on my side? I’m by no means sure–an astounding state of affairs.

At a conference I attended recently, I vented my preoccupation with rogue prosecutors, an ever-proliferating criminal law and the vanishing rights of the accused on a fellow attendee–a lawyer and former prosecutor. When I’d said my piece she said, "But you have to remember that nearly all of the people who are prosecuted are guilty." For half a second I thought she was joking and I started to laugh. But she wasn’t joking.

I wonder how much less brave talk there would be if these facts were widely known.

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