One of the least visible and most powerful actors in our entire system is the prosecutor — often referred to as a district attorney or the DA. They decide what cases take precedence, which crimes to charge, and what sentences to pursue — including, in 25 states, whether or not to seek the death penalty. And that's just the force they wield at the front end of the system.
District attorneys also hold tremendous influence over local law enforcement departments, forensic labs, state legislators and even judges. They have seemingly endless resources at their disposal, the full weight of government authority behind them, and few checks and balances on their power. All of that power leaves the very structural integrity of our system shaky.
Instead of each department working independently to seek the truth in a case, they instead work as single organism with the DA at the head. Law enforcement takes direction on what cases should move forward, forensic labs are usually paid by the prosecutor's office (some are even paid based on conviction rates, instead of a flat fee for services), and the majority of judges are former prosecutors themselves. The nature of these relationships leads to confirmation bias and a system that has a vested interest in securing wins for the DA, rather than an impartial process seeking truth, with independent actors providing overview.
Not only does this situation result in thousands of wrongful convictions, it also means wayward government actors are unlikely to be held accountable. It is extremely unlikely that a member of law enforcement will be tried for a crime, and it's rarer still that they will be convicted and sentenced. Part of that is due to the terrible legal doctrine of qualified immunity that essentially places police above the law, but prosecutors also often decline to press charges against corrupt cops they work alongside. Even when they do press charges, they frequently seek lesser sentences for the crime or prosecute the case less intensely, which results in acquittals or slaps on the wrist for those involved.
This applies beyond crimes committed in the line of duty. When police or lab technicians lie under oath, bribe jailhouse informants, or commit other fraud that leads to wrongful convictions, the consequences are often underwhelming.
If prosecutors fail to hold those they work with accountable, they're even less likely to be held accountable themselves. Prosecutorial misconduct runs rampant in our system. Studies show that misconduct is the leading cause in wrongful convictions (including in almost two-thirds of death row exonerations), but prosecutors are far less likely to receive any sort of real reprimand for this behavior than other attorneys.
Though district attorneys are typically elected at the county level, the reality is that most voters pay little attention to their activities. Most of them run unopposed and overwhelmingly win their races, even when there is competition. So they are shielded from the reckoning that many of them deserve by the complacency of voters and the special immunity the legal system affords them.
Not only do prosecutors face little to no pushback on their misconduct inside the courtroom, they also receive very little scrutiny for the decisions they make outside of it.
Recently, a district attorney in Satilla Shores, Ga., neglected to press charges against two men, Travis and Gregory McMichael, who stalked and murdered a young man jogging through their neighborhood, Ahmaud Arbery. The DA even wrote a letter maligning the victim. Were it not for video of the brutal attack leaking, this prosecutor would have gotten away with covering up the facts in the case. According to locals, this wouldn't be a first.
Prosecutors get to make unilateral decisions on which cases to charge, and data shows that they often don't make good decisions. To begin with, black people are over-represented in our justice system, and this problem begins with who police arrest and who prosecutors decide to charge. The data we have indicates DAs are far more likely to pursue charges against black defendants, leading some cities to experiment with blind charging — removing racial data from the prosecutors' knowledge.
Considering the fact that almost all prosecutors are white men, it should surprise no one that implicit bias tends to creep into their decision-making process. Data also shows that DAs are much more likely to pursue the death penalty when there is a white victim and a black defendant.
Obviously, prosecutors have a startling amount of power over the enforcement of our laws. But they also play a pivotal role in setting the law as well.
Each state has a District Attorneys Association that throws its weight behind lobbying efforts to prevent the passage of criminal justice reforms. These groups intimidate state lawmakers who hesitate to vote against them for fear their local DA will go back to the district and tell the voters their representative is "soft on crime" or some other tired trope. As the only consistent, organized opposition to criminal justice reform (which is very popular on both sides of the aisle), these associations deserve a great deal of blame for improvements not being implemented more quickly in our system.
On top of all of this, prosecutors continue to rise through the ranks of power. Many go on to be attorneys general, judges and members of Congress, meaning their unchecked behavior, bias and anti-justice reform viewpoints go on to have even greater influence over our laws.
If we hope to create a justice system that lives up to the American values of limited government and individual liberty, something must be done to curb the problem with prosecutors.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. Read Hannah Cox's Reports — More Here.
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