Prosecutorial Accountability, Internal and External

I am just one of the many commentators who have bemoaned the absence of robust accountability for prosecutors in a system dominated by plea bargaining.  (See, for instance, my papers here and here.)  Now, Ron Wright and Marc Miller, two of my favorite authors on criminal procedure, have an interesting new paper exploring prosecutorial accountability from a global perspective.

Wright and Miller contrast the traditional American and civil-law approaches to prosecutorial accountability: the U.S focuses on external accountability, while most of the rest of the world focuses on internal accountability.  Thus, in the American system, prosecutors are traditionally elected at the local level, which theoretically establishes accountability to voters.  Elsewhere in the world, prosecutors are subject to bureaucratic accountability through large, centralized justice departments.

Wright and Miller argue that the traditional distinction between the U.S. and civil-law approaches is breaking down, as American prosecutorial offices are growing more bureaucratic and European offices are becoming more responsive to the public.  “Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world” (3).

Wright and Miller provide a helpful overview of the traditional civil-law approach, which I find in many respects quite attractive.

Continue reading “Prosecutorial Accountability, Internal and External”

A Harsh Review of Milwaukee’s Deferred Prosecution Program

Today’s Journal Sentinel offers what purports to be the first review of the Milwaukee County District Attorney’s deferred prosecution program.  The first three paragraphs provide a good sense of the content and tone of the report:

Milwaukee County’s deferred prosecution program has grown into a major initiative that allows hundreds of defendants each year to walk away from criminal charges with little or no consequences in exchange for getting treatment and staying out of trouble.

Some defendants awarded breaks under the program committed serious crimes, including several that prosecutors admit violate their own policy, a Journal Sentinel analysis of three years of court records has found.

The review of cases filed from 2007 to 2009 found dozens of examples that raise questions about how the county’s deferred prosecution program is being implemented.

The report then discusses a handful of cases in detail.  None can readily be characterized as a success story, and readers may be left with a sense that the program routinely results in the dismissal of charges against violent offenders, pedophiles, and big-time drug dealers.  (A short related piece appearing on the third page of the DPA coverage does discuss an additional case that prosecutors apparently touted as a success story, although it, too, involves lurid facts — a sexual assault of a juvenile — that may leave few readers feeling reassured about the type of defendants who benefit from the program.)

Of course, recounting success stories is unlikely to sell many newspapers.  Still, I’m disappointed that a review of an important criminal justice initiative seems based on little more than a few anecdotes that were apparently selected for their shock value.

Continue reading “A Harsh Review of Milwaukee’s Deferred Prosecution Program”

Making Sense of Entrapment — Selective Prosecution in Disguise?

Coincidentally, as I was preparing to teach my criminal law students about the entrapment defense earlier this week, I saw  this article in the New York Times, which discusses the ongoing controversy surrounding the government’s use of sting operations against terrorism suspects.  It begins this way:

The arrest on Friday of a Somali-born teenager who is accused of trying to detonate a car bomb at a crowded Christmas tree-lighting ceremony in Portland, Ore., has again thrown a spotlight on the government’s use of sting operations to capture terrorism suspects.

Some defense lawyers and civil rights advocates said the government’s tactics, particularly since the Sept. 11 attacks, have raised questions about the possible entrapment of people who pose no real danger but are enticed into pretend plots at the government’s urging.

I share the instinctive sense of distate with government tactics that encourage or facilitate the commission of crimes.  It is difficult, though, to explain why and under what circumstances entrapment should serve as a defense to criminal liability. 

Continue reading “Making Sense of Entrapment — Selective Prosecution in Disguise?”

Now We Need a Gallion for Plea Bargaining

This continues my series of posts on recent decisions by the Wisconsin Supreme Court.  Today’s subject is State v. Conger, 2010 WI 56, in which the court affirmed a trial judge’s rejection of a plea deal.  Along the way, the court broke new ground in Wisconsin by articulating the standards for reviewing a plea rejection and the considerations that may properly be taken into account in rejecting a deal.

Here’s what happened.  Conger was charged with possession with intent to deliver 200-1,000 grams of marijuana within 1000 feet of a park, a Class H felony.  The deal he negotiated with prosecutors would have reduced the charge to three misdemeanor charges of possession with intent to deliver.   Continue reading “Now We Need a Gallion for Plea Bargaining”

New Book on Steven Avery Cases

Prosecutor Michael Griesbach has a new book out on the tragic Steven Avery saga — wrongfully convicted of rape, exonerated years later, convicted of a new murder, and then returned to prison less than four years after his release.  The epilogue includes some helpful reflections on the importance of the prosecutor’s integrity and commitment to doing justice in the face of political pressure:  Continue reading “New Book on Steven Avery Cases”

Convictions Overturned Based on Prosecutorial Tactics in Avoiding Juvenile Court

Proof and Hearsay reports here on a new Wisconsin Court of Appeals decision overturning a defendant’s burglary and bail-jumping convictions based on the government’s intentional delay in bringing charges so as to prosecute the defendant in adult court.  (The full opinion in State v. Bergwin is available here.)  Bergwin committed a series of burglaries when he was sixteen.  The police completed their investigation of the burglaries a month and a half before Bergwin turned seventeen, but the state delayed bringing charges until three days after Bergwin’s birthday.  The Court of Appeals characterized the delay as a violation of Bergwin’s due process right to juvenile adjudication.

The case stands in marked contrast to the Armstrong case, which I blogged about here.  Armstrong turned on the strict separation of executive and judicial functions and a belief that judges are not competent to second-guess prosecutors’ charging decisions.  My impression is that there are many more Armstrong-type cases than Bergwin-type cases out there, but it is good to see an appellate court asking some hard questions about prosecutors’ motives every so often — courts play (or ought to play) an important role in ensuring prosecutorial accountability.

Hat tip to Kevin Weiss.

Armstrong and Judicial Incompetence

Today, I reread United States v. Armstrong, 517 U.S. 456 (1996), in preparation for teaching a class on selective prosecution tomorrow.  I remain unpersuaded by the Court’s analysis.  The defendants, who were indicted in federal court for dealing crack, sought discovery from the government in order to determine whether they and other black defendants were selected for federal prosecution (and hence for the harsh federal mandatory minimums for crack offenses) because of their race.  In support of the motion, they submitted affidavits indicating that all or nearly all federal crack defendants in their district were black, while many crack defendants prosecuted in the local state court system were not black.  The district court judge granted the discovery motion, but the Supreme Court later held that the defendants were not entitled to pursue their selective prosecution claim.

The Court’s analysis seems to be driven by a strong presumption against judges second-guessing prosecutorial charging decisions.   Continue reading “Armstrong and Judicial Incompetence”