Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Sunday, April 12, 2009

More fall-out from the Stevens Case

While I remain skeptical in the long-run, there appears to be some public re-thinking of the whole subject of prosecutorial abuse, especially in the federal system, basically echoing my remarks in the last couple of posts on the subjects.

Check out the following post on The Sentencing Blog:

Should we blame bad apples or a bad culture for federal prosecutors gone wild?

It references the following quote from a Wall Street Journal article:
Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn't involved a U.S. senator. "My question is what happens to the rest of us?" he asked. "What happens when the person doesn't have the resources Sen. Stevens had? What happens to those cases that don't reach the attorney general?"

I'll tell you what happens. Go directly to jail. Do not collect $200. Have a nice day.

Politico further amplifies this theme in Federal Judges are Fed-Up. Please read it!

"Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting."

I hope so.

Part of the problem is that so many judges are themselves former prosecutors.

The reason I am skeptical about change in the long-run is that 1) politically speaking, it is difficult to run a campaign appearing "soft" on crime so there is never any political pressure for reform and 2) the general public is psychologically resistant to the idea that prosecutors might be the "bad" guys because if the people in charge of protecting the public are themselves corrupt, then who protects us from the protectors.

Short of nominating judges who view prosecutors skeptically, I am afraid this will be a fad that passes.

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