Accounting for Prosecutors

“Well placed to hold others accountable, prosecutors must themselves be held to account,” says Professor Daniel Richman.

Questions about the role prosecutors should play in promoting citizenship “are asked all too rarely,” Professor Daniel Richman writes in “Accounting for Prosecutors.” Published in Prosecutors and Democracy, a new collection of essays, Richman's article explores how prosecutors hold others to account as well as how they themselves can be made accountable. The book is due out this month by Cambridge University Press.

Richman, the Paul J. Kellner Professor of Law at Columbia Law and a former federal prosecutor in Manhattan, began his analysis three years ago after visiting Brazil. Meeting with prosecutors, judges, and law professors there, he saw that prosecutors, as part of their efforts to combat corruption, have adopted plea bargains, cooperation agreements and other tools favored by their counterparts in the U.S.

Richman writes of the increasing international demand for just the sweeping prosecutorial discretion that troubles so many in the U.S. The point “is to step back and recognize there are both upsides and downsides to the U.S. system and to think about ways in which you can both maintain the special competence our prosecutors have without falling into the lack of accountability that’s so often condemned,” he says.

The powers of prosecutors

The ability of prosecutors in the U.S. to grant leniency to the underlings in a criminal conspiracy in return for information that allows prosecutors to work their way up the chain to the conspiracy’s senior members, gives prosecutors “an ability to develop evidence that isn’t immediately available to the police,” observes Richman. He notes that ability allows prosecutors to find and prosecute corruption, organized crime, terrorism, extortion, and other wrongdoing that tends to occur out of view.

Their ability to hold accountable those who would otherwise enjoy impunity is but one way that prosecutors can promote liberal democratic values, Richman contends. Because, at least in the American system, they decide what charges to bring and against whom, prosecutors, in effect, define criminal law, observes Richman, who says that the prosecutor’s account of how a law has been violated furnishes the story the state tells for why someone deserves to be treated as a criminal.

The ability to shape the narrative means prosecutors can push “beyond the frame the police have constructed to promote the accountability of others, including the police themselves,” Richman adds.

The power of prosecutors, who in most states are elected to office, also includes an ability to shape criminal law and institutions more generally. “Prosecutors have considerable political power and they can turn that political capital into good or ill,” Richman observes. “They can promote legal reforms that can make prosecution easier or they can promote law reforms that ameliorate social ills they’ve identified that can’t be solved by simply putting people in prison.”

While there may be an unseemliness to electing prosecutors (and judges, as is the practice in many states), the idea that justice differs as result has yet to be proved, notes Richman, who notes the diversity of arrangements for selecting prosecutors in New York, New Jersey, and Connecticut. He observes that however you set up a criminal justice system, “it’s a system made up of culturally constructed humans and it comes with some limitations.”

With that in mind, Richman identifies some considerations that cut across institutional design and that can allow democracies to hold prosecutors accountable.

Transparency

Whether one thinks prosecutors in the U.S. should open plea bargaining and other practices to scrutiny or that the opacity that accompanies such arrangements contributes to the pursuit of wrongdoing and even fairness, neither view necessarily trumps the other, says Richman.

Richman says he has “mixed feelings” about bringing the work of prosecutors further into the light, citing the experience of the federal sentencing guidelines established in the mid-1980s.

While the guidelines aim to promote honesty, fairness, and proportionality in sentences handed out—and invite scrutiny from social scientists and others that Richman welcomes—in practice they have provided Congress with the freedom to intervene and raise sentences.

“The risk you bear is that exposure just gives those outside actors with strong political power the ability to manipulate the system,” Richman notes.

Dialogue between prosecutors and police

The exchanges between police and prosecutors that sometimes spill into public view holds the potential to improve the product of their efforts, says Richman, who cites decisions by some district attorneys in New York City to stop prosecuting low-level arrests for marijuana possession despite the police department’s continuing to bring them.

“One doesn’t have to have a clear sense of which is the right answer to know that it’s a good thing that the public is exposed to the lack of consensus,” he says.

Sufficiency of scale

As Richman sees it, any inquiry into the relationship of prosecutors to democracy needs to consider how big the political unit in which a prosecutor operates needs to be.

He cites the problems in Ferguson, Missouri, where a reliance on arrests as a means of collecting fines formed part of a pattern of civil rights violations.

Criminal justice in the U.S. is carried out largely by counties (there are more than 2,300 prosecutors’ offices in the U.S.), and particularly in the smaller ones, relations among prosecutors, politicians, and police can breed insularity, notes Richman, who adds that having overlapping jurisdictions—federal, state and local—can help to check injustice.

“I don’t think any level of government has a monopoly on virtue, but they’re on different pages,” says Richman. “Overlap is not a silver bullet, but it’s a way in which scale problems can be addressed and it also provides a kind of hedge.”

The availability of criminal records

Compared with the European Union, which accords information relating to criminal convictions the status of personal data that citizens have a right to safeguard, the U.S. permits such records to be “exceptionally public,” says Richman.

Managing the information matters for accountability, argues Richman, who notes that the consequences of a criminal conviction can stay with someone for the rest of their life.

Though “decision-making that affects the public ought not generally to be suppressed,” says Richman, he adds that “when too many entities either formally or informally allow a criminal conviction to necessarily trigger a cascade of consequences, then you can undo the social fabric in ways that weren’t well thought out.”

Recommended reading

Accounting for Prosecutors

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Posted on October 23, 2017

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