Magazine article The American Prospect

Games Prosecutors Play

Magazine article The American Prospect

Games Prosecutors Play

Article excerpt

The majority of prosecutors, police officers, and federal law enforcement agents are probably fair, ethical, and even compassionate public servants. But arrogance, 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.


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. …

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