An Evil Prosecution of the George Soros Kind
This story from the NYT is making the rounds on the Internet today. The headline is: “The Vaccine Had to Be Used. He Used It. He Was Fired.” The subhead is, “Ten doses of the Covid-19 vaccine would expire within hours, so a Houston doctor gave it to people with medical conditions, including his wife. What followed was ‘the lowest moment in my life,’ Dr. Hasan Gokal said.”
The lowest moment was not just that he was fired from his hospital. He was criminally charged by the Harris County District Attorney, Kim Ogg, for “stealing” the vaccine.
Now you might wonder, as I did, how a prosecutor could be so brain-dead as to charge a doctor for “stealing” this life-saving medicine when the alternative was to pour it down the sewer. And you might think, again as I did, that it was just a case of terminal hubris and stupidity. But it seems to have been more than that, and worse. A lot worse.
On Janurary 21, the NYT reports
Harris County’s district attorney, Kim Ogg…issued a news release that afternoon with the headline: “Fired Harris County Health Doctor Charged With Stealing Vial Of Covid-19 Vaccine.”
It alleged that Dr. Gokal “stole the vial” and disregarded county protocols to ensure that vaccines are not wasted and are administered to eligible people on a waiting list. “He abused his position to place his friends and family in line in front of people who had gone through the lawful process to be there,” Ms. Ogg said.
But Dr. Gokal said that no one from the district attorney’s office had ever contacted him to hear his version of events. And when his lawyer requested copies of the written protocols and waiting list referred to in the complaint, a prosecutor told him by email that there were no written protocols from late December; nor had a written wait list yet been found.
Fortunately, a local judge had the sense to toss this burlesque of a charge. Again, as the Times reports:
Days later, a criminal court judge, Franklin Bynum, dismissed the case for lack of probable cause.
“In the number of words usually taken to describe an allegation of retail shoplifting, the State attempts, for the first time, to criminalize a doctor’s documented administration of vaccine doses during a public health emergency,” he wrote. “The Court emphatically rejects this attempted imposition of the criminal law on the professional decisions of a physician.”
Both the Texas Medical Association and the Harris County Medical Society recently issued a statement of support for physicians like Dr. Gokal who find themselves scrambling “to avoid wasting the vaccine in a punctured vial.”
“It is difficult to understand any justification for charging any well-intentioned physician in this situation with a criminal offense,” the statement said.
Here’s the kicker:
Dane Schiller, the district attorney’s director of communications, declined to answer questions about the case.
No kidding. Ms. Ogg and her lackeys now have nothing to say.
Now here’s the double kicker: No one could read this story without being mystified about how someone like Kim Ogg — someone seemingly drunk with power but bereft of even the ghost of judgment — could become a big city district attorney. Oddly, the NYT says not one word about that obvious question.
Why not?
It didn’t take me long to find out. The reason the Times keeps the origins of Ms. Ogg’s rise to power behind the curtain is that she’s exactly the sort of prosecutor the Times has been glorifying for months (or I suppose years at this point). Ms. Ogg is, to be specific, a “progressive prosecutor” — the spawn of George Soros
Here’s the story the Times doesn’t tell:
Ogg is part of a wave of reform-minded prosecutors elected nationwide in 2016 in major jurisdictions including Chicago, Cleveland, Denver, Orlando, Tampa, Jacksonville and St. Louis. Many, including Ogg, had significant financial backing from liberal donor George Soros. They didn’t run on identical platforms, but each promised some form of change, whether it was skepticism about the death penalty and nonviolent drug cases, or greater scrutiny when police shoot unarmed suspects.
Kent and Mike Rushford have done a great job of reporting the outcroppings of “progressive prosecutors,” particularly George Gascon in Los Angeles. But there is an important yet hidden angle of the story that the Gokal prosecution showcases: While prosecutors like Gascon and Ogg are eager to give every break to criminals, they’re going to be tuff, tuff, tuff with citizens like Hasan Gokal, whose “crime” was helping medically at-risk people get doses of the COVID vaccine — doses that otherwise were certain to go to waste and help no one.
Or to put it in one sentence: The real mission of progressive prosecutors is to serve criminals and subvert peaceable citizens of good will.
But wait! There’s more!! You might be wondering why, specifically, Ms Ogg would go after Dr. Gokal in such an upside-down and obviously perverse way. I don’t know for sure, but there’s enough here to smell the politically befouled odor of the progressive move for “equitable” distribution of the COVID vaccine.
No one ever says too directly what an “equitable” distribution would be, but the suggestion has been made that distribution strictly by age would be — ready now? — racist. Steve Hayward found this gem last December in that self-same New York Times:
“Older populations are whiter,” Dr. [Harald] Schmidt [a University of Pennsylvania ethics professor] said. “Society is structured in a way that enables them to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.”
Again, I don’t know that Ms. Ogg went after Dr. Gokal because he failed — albeit in an emergency where he had no choice — to give first priority to groups progressives find more “deserving” and therefore rank higher on their vaccine priority list (and groups to which Ms. Ogg owes her electoral success). So I won’t make that charge. Still, something more than mere hubris and stupidity has to account for a prosecution as perverted as this one. We should demand to know exactly what it is.
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I recall, Bill, a discussion of ours not too long ago in which you seemed quite resistent to the idea that judges ought to have some authority to review the charging and bargaining discretion exercised by prosecutors. In light of your recent criticism of so-called “progessive prosecutors” (and similar posts on this blog from Michael and Kent), would it be fair to wonder if you are now more open to giving judges a more robust role in this regard as some new prosecutors are starting to approach their roles in novel ways?
Especially given that you, quite rightly, take the prosecutor here to task for failing to answer questions about this crazy case, would you at least support reform proposals that require prosecutors to sometimes make some kind of formal record to support their execise of their charging and bargaining discretion? Especially since you suggest that political and racial factors may be polutting the work of prosecutors here, perhaps we might at least urge prosecutors to provide special explanations if and whenever one might reasonably fear the exercise of charging and bargaining discretion was polluted by illegitimate factors?
As you know, I have long been critical of the often hidden and unregulated exercise of prosecutorial discretion. I hope you appreciate that the left turned to “flipping” prosecutors in part because there has been such resistance to efforts to make the work of prosecutors more transparent and regulated. I am now hoping that, as you and others can now better see just how harmful hidden and unregulated exercise of prosecutorial discretion can be, that you will join me in calling for long-needed reforms to make the work of prosecutors more transparent and regulated. Might we work together on developing model guidelines for prosectorial discretion?
In case it hasn’t been clear enough from my posts, I will be very explicit here. Generally, judges have no authority of oversee charging decisions. However, it is within the legislative authority to impose restraints by statute, and judges can and should enforce the statutes.
In the controversy in Los Angeles, the DA’s policies violate the law in two ways. Under the Three Strikes law, the prosecutor must include the “strikes” in the charging document but then may move to dismiss them in the interests of justice, with the judge making the final call. Also, California abolished nolle prosequi by statute a very long time ago, limiting the ability to rescind enhancement allegations once made.
Those are the circumstances in which the LA Superior Court enjoined Gascón’s policies. The remainder remain legal, albeit dangerous and based on false assumptions.
Should there be further statutory restraints on charging discretion? Possibly. We have never said otherwise. The subject is open to discussion. Should judges make up their own restraints? Definitely not.
“I recall, Bill, a discussion of ours not too long ago in which you seemed quite resistent to the idea that judges ought to have some authority to review the charging and bargaining discretion exercised by prosecutors.”
Correct, but it’s less my idea than that of the Constitution, which makes the decision about what charges to bring (or give up in bargaining) solely an executive branch function. The Framers correctly saw that the fast road to tyranny was to have the same branch both decide what charge to bring, and then adjudicate the very charge it selected.
“In light of your recent criticism of so-called “progressive prosecutors” (and similar posts on this blog from Michael and Kent), would it be fair to wonder if you are now more open to giving judges a more robust role in this regard as some new prosecutors are starting to approach their roles in novel ways?”
You do have a gift for language — “novel ways” is a masterpiece. Someone more pedestrian like me might say, “…approach their roles as if they were still ideological defense lawyers doing their darndest for criminals.”
But I digress. Judges in these one-party jurisdictions have had to become more active in the face of irresponsible and lawless “prosecutors,” but they have done so in ways of which I have always approved — that is, not by intervening in charging decisions per se, but (in Gascon’s case) simply insisting that existing commands of statutory law be obeyed, and (in this case), engaging in the traditional task of deciding, one the charge is filed, whether it has legal sufficiency given the evidence the prosecutor proffers. These are time-honored and traditional judicial functions that, most regrettably, are now needed more than in the past in the face of Soros-funded zealots who manipulate (or just ignore) the law as it may suit their extremist ideological ends.
“Especially given that you, quite rightly, take the prosecutor here to task for failing to answer questions about this crazy case, would you at least support reform proposals that require prosecutors to sometimes make some kind of formal record to support their exercise of their charging and bargaining discretion?”
That would be a useful idea so long as it was made explicit that such a proposal would confer no rights on the defendant and would not be enforceable by the court. Prosecutors should be accountable in this way — to the people who elected them.
“As you know, I have long been critical of the often hidden and unregulated exercise of prosecutorial discretion. I hope you appreciate that the left turned to “flipping” prosecutors in part because there has been such resistance to efforts to make the work of prosecutors more transparent and regulated.”
Nope — the left turned to flipping prosecutors for one paramount reason: It views criminals as victims rather than victimizers and wants to go easy on them (while being plenty tuff on honorable citizens like Dr. Gokal). The left is in no hurry to make the prosecutors’ offices they now run accountable or transparent, as the stonewalling in this very case aptly illustrates.
“I am now hoping that, as you and others can now better see just how harmful hidden and unregulated exercise of prosecutorial discretion can be, that you will join me in calling for long-needed reforms to make the work of prosecutors more transparent and regulated. Might we work together on developing model guidelines for prosecutorial discretion?”
The problem here is not mainly the PROCESS by which the charge against Dr. Gokal was arrived at but its SUBSTANCE. It accuses Dr. Gokal of “stealing” when no normal person (including thank goodness the judge) could think any such thing. Still, you know me — Mr. Nicey as ever! — so I will be happy to work with you on guidelines for prosecutorial discretion provided, as I was saying, that they would confer no rights on the defendant and would not be enforceable by the court. Such guidelines, as applied for example to this vaccine case, might be enforceable by a higher executive branch official — say, the Attorney General of Texas.
Now I doubt that’s what you have in mind, but I must give you credit for your insight that the misbehavior of the Gascons and Oggs of the world does provide at least a plausible-sounding opening to yet more misbehavior, i.e., unconstitutional oversight of executive branch functions by the judicial branch, in violation of the separation of powers.
I want to add the valuable contribution of a Facebook friend of mine who spent many years as a criminal defense lawyer. Note especially his acute analysis of the racial angle that runs just underneath this story while keeping its ugly head mostly out of sight:
An amazing story indeed, with many moving parts — which is why you’ll see some, but not enough, coverage; William Graham Otis helps pick up the slack. If you don’t know the background, Bill’s opening paragraphs set the stage:
“This story from the NYT is making the rounds on the Internet today. The headline is: “The Vaccine Had to Be Used. He Used It. He Was Fired.” The subhead is, “Ten doses of the Covid-19 vaccine would expire within hours, so a Houston doctor gave it to people with medical conditions, including his wife. What followed was ‘the lowest moment in my life,’ Dr. Hasan Gokal said.”
The lowest moment was not just that he was fired from his hospital. He was criminally charged by the Harris County District Attorney, Kim Ogg, for “stealing” the vaccine.”
I can’t possibly do the story justice and won’t make an inevitably futile stab at summary. Bill’s post title, “An Evil Prosecution of the George Soros Kind” is both efficient and apt. I’ll add several observations.
Bill’s entire post is a must-read. The question it raises — why on earth would a “progressive” prosecutor undertake this prosecution in the first place? — is both profound and potentially recurrent. Not that there’s a definitive answer, but at least plausibly, the attempt to destroy this guy’s life was made in the interest of “racial equity”:
“… You might be wondering why, specifically, Ms Ogg would go after Dr. Gokal in such an upside-down and obviously perverse way. I don’t know for sure, but there’s enough here to smell the politically befouled odor of the progressive move for “equitable” distribution of the COVID vaccine.
No one ever says too directly what an “equitable” distribution would be, but the suggestion has been made that distribution strictly by age would be — ready now? — racist. …”
You might also therefore think that Gokal and the vaccine recipients are white but you would be quite wrong. As the NYT account linked by Bill indicates, Gokal is indeed a Pakistani immigrant. That’s not all (from the article):
“The officials maintained that he had violated protocol and should have returned the remaining doses to the office or thrown them away, the doctor recalled. He also said that one of the officials startled him by questioning the lack of “equity” among those he had vaccinated.
“Are you suggesting that there were too many Indian names in that group?” Dr. Gokal said he asked.
Exactly, he said he was told.”
Draw your own conclusions. Mine: on the racial-grievance totem pole, Indians and Pakistanis don’t occupy pride of place. (And if I were even more cynical — doubtful, but theoretically possible — I’d pronounce the prosecution actuated by anti-Asian animus.) Funny thing, too, the smug, power-hungry progressive prosecutor was initially voluble, no doubt thinking her destruction of a Good Samaritan put her on the side of the angels:
“This was how Dr. Gokal learned that he had been charged with stealing vaccine doses: Harris County’s district attorney, Kim Ogg, had just issued a news release that afternoon with the headline: “Fired Harris County Health Doctor Charged With Stealing Vial Of Covid-19 Vaccine.”
But now, after the blowback, she’s suddenly maintaining radio silence: “Dane Schiller, the district attorney’s director of communications, declined to answer questions about the case.” Note though that, after a judge promptly dismissed the case, she nonetheless refuses to concede defeat, and promises to take the case to a grand jury. Meanwhile, Gokal has been ground to dust, his career shattered.
One last point. Milwaukee just recently saw something very similar play out, but with a much different result: https://www.facebook.com/bill.tyroler/posts/10215457391221705. The scion of a local billionaire was the beneficiary of “surplus” vaccine. No fallout, just a bit of tepid news coverage. Then again, the billionaire is himself well-known (and positioned) as a progressive — in a “who-whom” world, that more than money purchases a lot of immunity.
One quick reply on the particulars: there is a particular richness to hearing a new set of people wail about “politics” and “racism” influencing the work of a new set of prosecutors when plenty of old people have spent lifetimes expressing concerns about “politics” and “racism” influencing the work of old prosecutors. As I have always seen it, the fundamental problem is the extreme and hidden and unregulated state powers now exercised by any and all prosecutors no matter their preferred politics or race. First they came for the weed dealers, then they came for the vaccine doctors, then ….
“One quick reply on the particulars: there is a particular richness to hearing a new set of people wail about “politics” and “racism” influencing the work of a new set of prosecutors when plenty of old people have spent lifetimes expressing concerns about “politics” and “racism” influencing the work of old prosecutors.”
Not real sure I understand this criticism, but to the extent I do, I’d say this: Little that we’ve discussed approaches the “richness” of abolitionists solemnly assuring us that it we end the death penalty, we’ll replace it with life “with no possibility of parole” — only to have them agitate furiously, the minute after the death penalty is gone, to end life with no possibility of parole as merely a slow-motion death penalty, and as unacceptably inhumane and unforgiving.
Of course that’s what they thought all along, but it was convenient to lie about it during the abolition campaign, so lie is what they did — loudly and often. Is that what you’d call “rich”? I wouldn’t, not at this point. I’d just call it routine.
But I digress. If, as certainly seems to be the case, politics and racial preference influenced Ms. Ogg’s decision to undertake this abomination of a case, then, you betcha, her bringing in these factors is fair game. Unless, that is, you think politics and racial preference now count as best practices for prosecutors in making their decisions. I doubt you do, but I’ll ask instead of guess. Do you?
“As I have always seen it, the fundamental problem is the extreme and hidden and unregulated state powers now exercised by any and all prosecutors no matter their preferred politics or race.”
As I’ve noted, here and many times before, a prosecutor’s power to decide what charges to bring, if any, is a power conferred by the Constitution. If you want to amend the Constitution to shift that power to defense lawyers, or MS-13, or to anyone other than officers of the political branches, have at it. And the idea that prosecutors are unaccountable is just wrong. Didn’t we just used to have a chief prosecutor named Bill Barr? Where is he now? Oh, wait, the voters decided they wanted to go in a different direction, so now he’s out of a job, along with all his top deputies at DOJ. That doesn’t sound much like a lack of accountability; instead, it sounds like a whole bunch of accountability. P.S. Does the public defender — a taxpayer employee — ever face public accountability like that? Or any public accountability at all? I must have missed that.
My point, Bill, it that folks on the left have asserted for decades that prosecutorial discretion — including the discretion to seek capital or LWOP charges — is infused with politics and racial preference. Now that there are different types of prosecutors, we see different types of people expressing the similar worries. And for good reason because we allow prosecutors to exercise too much discretionary power in hidden and unregulated ways.
I do NOT think exercising state power infused with “politics and racial preference” is best practice, which is exactly why I think it wholly inadequate to rely ONLY on elections every four years to regulate the work of prosecutors. Can you see the folly of saying it is problematic to have politics drive the work of prosecutors and then say we should be content with elections as the ONLY means to regulate their work?
If you want to talk about your frustrations with how capital abolitionists have developed arguments in the political and judicial realms, have at in another post. This thread is about whether we should be troubled if and when prosecutorial discretion may be infused with politics and racial preference, and whether and how we can guard against this potential problem. Folks on the left have been expressing concerns about this problem for decades, generally pushing for greater transparency and regulation. But you still seem to still advocate against greater transparency and regulation even as you are coming to see that different types of politics and racial preference may be finding expression in a few (and growing number) of DA offices.
Notably, I believe DA Kim Ogg was just reelected in 2020 by an 8% margin, and so I am sure she thinks she is representing her constituents pretty well. Based on your comments, it seems you essentially bless her continuing all of her prosecutorial practices without any more transparency or regulation subject only to voters having a chance to vote her out in 2024. I continue to think such unaccountable state power is quite contrary to the checks and balances approach to government that the Framers created for this great nation. But if you want to just keep complaining without seeking to construct a better system, have at it.
I perceive some tension between Kent’s comments and Bill’s. Kent states “it is within the legislative authority to impose restraints by statute,” and I would think that could and should include a legislature having authority to create judicially-enforceable charging and bargaining guidelines for prosecutors. But Bill claims that the “Constitution … makes the decision about what charges to bring (or give up in bargaining) solely an executive branch function.” If that was true, I think Bill would be asserting that the state court ruling against DA Gascon’s policies is itself unconstitutional.
Bill, do you think the judicial ruling in the LA case is constitutional flawed? If not, perhaps this is not really a “constitutional” issue, it is an issue of sound public policy and the proper allocation of shared powers. (I think Lee’s old boss was quite fond of stressing that not every issue is a constitutional one). Indeed, to the extent there are constitutional concerns implicated here, judges must have some authority to ensure charging and bargaining decisions are not exercised in wholly unconstitutional ways — e.g., an express, intentional, announced policy to only charge white defendants with capital offenses would, I hope, be subject to judicial review and rejection under the 14th Amendment. Similarly, I sure hope a judge could reject a plea deal in which a defendant agreed to a trial at which the evidentiary standard for guilt was to be “some plausible evidence” on one charge in exchange for the dropping of five other charges.
In other words, notwithstanding Bill’s eagerness to criticize but not countenance the regulation of prosecutors, their discretionary powers must be subject to both constitutional and statutory checks applied by judges. Perhaps you think that sound policy always calls for generally leaving prosecutors to their own devices absent extreme and obviously unconstitutional behaviors. But given the considerable success of so-called progressive prosecutors at the ballot box in recent years, I am hopeful that more folks will join me in seeking to make the work of all prosecutors more transparent and regulated. I see ample constitutional authority for judges to demand a lot more of prosecutors without any additional statutory mandates, but I would be more than happy to work on creating more express and detailed statutory guidelines in this realm as well.
So, I will finish by framing the issue this way, Bill: are you saying a legislature cannot seek to make prosecutorial discretion more transparent or regulate it in any way? If it can, will you join me in developing a model statute for prosecutorial transparency and regulation?
“Judicially-enforceable charging and bargaining guidelines” seems to imply generally-worded standards that give the prosecutor discretion but give judges authority to oversee the exercise of that discretion.
No, I would oppose that. The statutes that I refer to simply and cleanly remove a particular decision from the prosecutor’s discretion. That is within the legislative authority and does not raise the problem of judicial second-guessing of how an executive judgment call is made.
I get that you, Kent, and perhaps many others, might oppose on policy grounds statutory guidelines for the exercise of prosecutorial charging/bargaining discretion (just as some oppooppose, on policy grounds, statutory guidelines for the exercise of judicial sentencing discretion). But I take Bill to be making a bold constitutional assertion that only the executive branch can exercise any control over prosecutorial charging/bargaining discretion. That claim would seem to imply that it would be wholly unconstitutional for any legislatures to create any statutory guidelines for the exercise of prosecutorial charging/bargaining discretion.
I do not see a strong basis for what seems to be Bill’s constitutional claim, and it would seemingly undermine the legal basis for the recent ruling limiting DA Gascon’s discretionary charging actions. But maybe I misunderstand what Bill is claiming when he states “the Constitution … makes the decision about what charges to bring (or give up in bargaining) solely an executive branch function.”
Just very quickly to respond to Doug’s last point, which misapprehends my views. The political branches, i.e., those directly answerable to the electorate, have the sole power to define offenses and determine when and how they may be charged. The judicial branch has no such power.
The legislature has the authority to cabin charging decisions (although it very seldom uses that authority in my experience). The legislature could decide by statute, for example, that no one under age 14 can be charged with a crime carrying a life term. No constitutional problem there. It could also declare by statute that a charge of multiple murder or child murder cannot be negotiated and must be adjudicated by trial alone. No constitutional problem there, either (and it might be good policy, too, although that is a separate question).
But there should be no doubt about the real problem here, and it’s not my views of the Constitution. It’s “progressive” prosecutors who want to usurp the legislature’s sole right to define what constitutes a crime — usurp (and nullify) it by declaring, for example, that no more pot prosecutions will take place (when state law continues to make pot illegal), or that no more theft prosecutions will take place when the amount stolen has a value of, say, less than $1000. That is a de facto, nunc pro tunc veto of the scope of the legislature’s statutes. But the Constitution PROVIDES FOR NO SUCH VETO. Presidents and governors have a strictly time-limited veto power, but prosecutors have no veto power whatever. Claiming that lopping off parts of a statute by an ideology-based refusal to enforce is no mere exercise of “discretion.” It’s nothing like discretion as that term has always been understood. It’s a value judgment by the “progressive” prosecutor that the legislature has been too darn harsh and That I Know Better So There. When the “progressive” prosecutor pulls a stunt like that, essentially anointing himself a super legislature by his own fiat, then he can and should be stopped (which is what’s going on with the Gascon litigation ).
Finally, because only the political branches have authority over what charges to bring (or not bring), I will resist any attempt to get the camel’s nose of judicial involvement under the tent, no matter how ostensibly tentative or well disguised that nose is when it makes its appearance. I say this because I’ve been around this track before, and I know that bringing judges into in charging and plea bargaining — on the defendant’s side, of course — is what this game is actually about.
Lots to cover here, Bill, so I will add numbers:
1. Nearly 90% of states (including Texas) elect their judges in some way, which in fact does make the judicial branch “directly answerable to the electorate.” If your point is that only elected officials can be involved in shaping criminal charges, in the vast majority of states that can and should include judges. (Of course, the federal system is different and US Attorneys are a bit more politically accountable than federal judges, though most career AUSA seem to be almost as politically insulated as judges).
Are you comfortable with elected judges playing a role in regulating elected prosecutors? I see no constitutional problem with any types of judges have a role in reviewing prosecutorial discretion (though I big policy issues on the particulars). But will you at least concede that if your true concern is electorial accountability, then you would see no problem with elected judges playing a role in reviewing the work prosecutors?
2. You concede that the “legislature has the authority to cabin charging decisions,” and I assume that includes judicial enforcement of these statutory rules (e.g., if a teenager was involved in a political protests that became a riot that resulted in death and this activity started when the teen was 13 but finished when he was 14, a judge would need to decide if the teen could be charged in the death under you hypothetical statute). So, helpfully, it seems we agree that legislatures can — and I think they should — create some statutory rules for the exercise of posecutorial discretion, and I assume we agree that the judiciary has to have some role in the application of these rules. I continue to offer to work with you on what model statutory rules we might develop to enhance and advance the sound exercise of discretion by prosecutors.
3. You say your “real” concern is with nullification, but I do not think I have heard you complain about prosecutors failing to enforce criminal adultry laws that are still on this books in nearly 20 states. In Oklahoma, this crime is a felony: https://casetext.com/statute/oklahoma-statutes/title-21-crimes-and-punishments/21-872-punishment-for-adultery. I would be eager to know whether you are comparably aggrieved by the failure to prosecute this crime by so many prosecutors in so many states. Are these also examples of “a value judgment … that the legislature has been too darn harsh and That I Know Better So There.” Or is it simply a reasonable prosecutorial decision that time and energy is not wisely expended on enforcing a crime that the elected prosectors no longer believe “the people” want their tax dollars spent on? It seem your concern is not really blanket decisions not to prosecute — indeed, elsewhere you have eagerly defended pot criminalization based on the (inaccurate) claim that nobody really gets prosecuted for “just smoking a joint” — but rather just the concern about how prosecutorial discretion is being exercised by elected prosecutors you o not think use their discretion wisely. And since that is your true concern, let’s work together to address it directly with model prosecutorial guidelines.
4. Long story short, Bill, despite your eager to wrap your policy disagreements in all sorts of other garb, your defense of hidden and unregulated emperor discretion has no real clothes. I will continue to offer in good faith to work with you or anyone else on the important policy tasks of seeking to soundly reform the hidden and unregulated exercise of prosecutorial discretion. But if you just want to complain rather than construct a better system, so be it. Based on the pattern of prosecutorial elections in recent years, I suspect you will have plenty to complain about. And fundamentally, it is a righteous claim that we have a rule of men (and women) who are prosecutors rather than the rule of law. I want there to be more law here, but its seems you do not.
Doug — Some thoughts in no particular order, since the ideas put forward in your note above bleed into one another.
First, in order to work together on prosecutorial guidelines, we would need to agree on the central idea of the prosecution function (as something of a preamble). I think it’s this: “The role of the prosecutor is, within constitutional limits, to suppress crime by exonerating the innocent and convicting the guilty, and, as to the latter, to promote sober punishment that serves the goals of just dessert, deterrence, incapacitation, and if possible rehabilitation.”
Do you agree that’s what we hire prosecutors to do? Because unless we agree on the basics, agreeing on specifics isn’t going to be possible.
Second, I would want the enterprise to be what it says it is. That is, I would not help write “procedural and transparency guidelines” that are really just a disguised way to achieve a substantive result — lower sentences and fewer criminals getting sentenced. So these “procedural and transparency guidelines” would have to be outcome neutral — that is, they would neither increase or decrease sentencing overall. If we’re going to decrease sentencing, that should be done openly and with a full announcement of what it is. Do you agree to outcome neutrality — and not merely as a goal, but as a reality we will insist upon?
The reason I bring this up is that I’ve been around the track a few times. For example, commissions to “study” the death penalty are seldom to never about “studying” anything and instead exist to implement the pre-existing death-penalty-skeptical views of the handpicked majority of its members. Thus the commission’s recommendation essentially always turns out to be a list of ways effectively to cut back on the number of killers sentenced to death. But, since a majority of the electorate continues to support the death penalty, the commission’s enterprise has to be dressed up as a “study” merely of “procedures.” Sorry, I’m not biting. I’ve seen this trick one time too many.
Third, the fact that some state judges are elected does not give them chancellor’s foot authority over prosecutors in the ways I’m talking about, nor could it. The way our (federal) system is set up is as CO-EQUAL branches. We can’t have co-equality if one branch (the judiciary) is the overlord of DISCRETIONARY functions of either of the other two. The key feature here is not elected vs. non-elected; it’s that the judiciary has a FUNCTION with strict legal boundaries, boundaries different from those that circumscribe the executive and legislative branches.
So we need to untangle the functions courts properly can do from the others. Among the former are, as you suggest, to insure that the legislature’s laws are obeyed by, e.g., dismissing an indictment against a ten year-old for a capital crime when the legislature has, by statute, banned such a prosecution. A court can also bar the prosecution from introducing a confession it obtained by torture, because that violates well-settled legal prohibitions. But a court cannot (as you apparently would want) order a prosecutor to charge only the least serious of two or three possible offenses because the court thinks that’s all the case “is worth.” The remedy for “overcharging” lies with the jury, not with the judge’s intuitive (or political or ideological) “feel” for the case. If the prosecutor can truthfully prove all the elements he has charged BRD, then the case has not been “overcharged” in any sense I would be willing to validate in “prosecution guidelines,” and still less in any sense I would permit the judge to veto.
So one thing I would not go along with is allowing judges to substitute their discretionary (as opposed to law-driven) judgments for the discretionary (including but not limited to) charging and bargaining judgments of the executive branch. (This is, you might see, the analog of my refusal to go along with judicial second-guessing of executive branch pardons, no matter how breathtaking or even scandalous I take those pardons to be, e.g., Manafort, Roger Stone, Marc Rich, Roger Clinton, Susan MacDougal and lots more). Either we’re going to honor separation of powers or we’re not, and I am unalterably on the honoring side.
Last for now, have to say something about your “adultery argument.” I take it that the point is that, since we all go along with prosecutors not bringing adultery charges, we recognize that they can’t (and shouldn’t) charge everything on the books, so we already functionally accept progressive prosecutors’ not charging drug offenses or small levels of theft offenses.
My question is: What is the limiting principle, and how far are you willing to take this?
I’ll give a couple of examples.
Some of these progressive prosecutors will not charge theft when the amount taken is worth less than $1000, even though the theft statute contains no such threshold. Do you think that’s OK under your “adultery” theory? How ’bout raising the “exempt” amount to $5000? Or $10,000? Or $50,000? Or why not go the whole nine yards and allow the progressive prosecutor to refuse to charge anyone with theft, regardless of the amount? Now some people — like me — would say that’s impermissible, and not just because I don’t want to be robbed blind while the police are required to just stand there. It’s impermissible because the legislature passed a statute criminalizing theft AND THE PROSECUTOR DOES NOT HAVE A VETO.
Or how ’bout if the legislature has passed a rape statute saying that an adult man cannot have sex with someone less than 16. What if our progressive prosecutor thinks — based, ya know, on psychological “studies” by “experts” — that the age should be less than 12. So he refuses to indict a 50 year-old who has sex with a 13 year-old.
Is that OK? Does the progressive prosecutor get to veto (for any practical purpose) the legislature’s judgment on this matter and substitute his own more “enlightened” view? Where does this veto come from? Does it have limits? What are they? Or, under your “adultery” theory, does it have no limits, and the progressive prosecutor can effectively veto any law he wants?
I’ll be eager to find out — because, for one thing, if we have prosecutors with this sort of limitless authority, depending simply on their personal opinions; and we have judges with similarly limitless authority, depending simply on THEIR personal opinions, I’m just not seeing what’s left of the concept of law at all.
Bill, I greatly appreciate your details comments, and I will do two follow-ups that can perhaps get to the heart of the discussion:
1. Do you view *sentencing* as an executive or a judicial function? I see it as a judicial function, and that is why so much of modern prosecutorial charging and bargaining worries me, because modern prosecutors now seem so very eager and able to control the terms of sentencing. I only want judges to supervise charging and bargaining as a means to preserve the sentencing powers that I think they ought to have in the proper allocation of criminal justice powers. Your comments here suggest you think prosecutors should have primacy not only as to who gets charged and convicted, but also as to the terms of the sentence. I think that is wrong and dangerous, since it risks creating an inquisitorial system (and one that is particularly uneven with its punitiveness).
2. Hasn’t it long been the case in nearly every federal prosecutor office that certain low-level drug offenses will be left to the states even though there is no *de minimus* exceptions to federal drug laws? (I heard in Chicago, at one time, nothing less than a few kilos of drugs would get federal attention.) Has there long been a federal prosecutorial VETO of federal drug laws — or rather is it more accurate to say that prosecutors always have to allocate scarce resources based on current crime trends and community needs and other practical factors. As I see it, if a so-called progressive prosecutor makes an announcement about which cases she will not prioritize, she is making a transparent announcement of the policy judgments too often made behind closed doors with no oversight or understanding by the community. Such a statement can then be subject to criticism (in the community or in the next election cycle), and effective policy can have a chance to move forward.
I sense lots of current prosecutors already have views about sex offenses and police misconduct and all sorts of other harmful matters that shape how they charge and bargain in all sorts of hidden ways (e.g., I see very few federal prosecutions of teenage nudity under our child porn statutes, though all nudity under 18 is covered by federal law). I am eager to encourage prosecutors to announce, in advance, their charging and bargaining policies and plans so that these choices can be subject to scrutiny on their own terms and in application. Instead, we more often get policy behind close doors (or not really made at all) — e.g., What was the Trump Justice Department’s approach to marijuana offenses from 2017-2020 years when we saw massive growth in the industry, despite the 2018 rescission of the Cole Memo? I do not recall your complaints about AG Session and AG Barr acting to VETO federal marijuana prohibition even though federal police had to “just stand there” as another dozen+ states open weed stores on their watch.
I went to the Ohio Criminal Sentencing Commission last year to request simply the collection of data concerning when local prosecutors charged homicide offenses based on drug overdose deaths, and prosecutors and police successfully objected to the collection of this data. How can we rationally assess prosecutorial charging and bargaining decisions if they are hidden from view and not subject to any scrutiny? There may be lots of grounds on which to criticize the work of progressive prosecutors, but having them publicly announce their policies (and then try to apply them evenly) strikes me as a means to advance rationale discussions of criminal law and its impact, not a way to block the law’s sound development as does the current secrecy and inconsistency in the work of prosecutors often does.
Doug — As to your first question, which is all I’ll take on in this single response: On the day of sentencing, the judge alone calls the shots; I agree with that. But there is much that affects the sentence that comes both before and after that day, as the Framers knew and intended. Initially, the charge is selected by the executive branch (alone) from what is usually a range of possibilities. If the Framers expressed any misgivings about that, I don’t know about it. Also, through clemency, the executive branch (alone) has power over how much of the sentence will actually be served. And of course the legislative branch (also alone) has the power to set both a floor and a ceiling for sentencing for any given crime, and to authorize the creation of sentencing guidelines as well.
But instead of putting it in my own words, I’ll let SCOTUS do it for me, in the early part of its 8-1 opinion in Mistretta — an opinion joined by Justices from Brennan to Rehnquist, and authored by that right wing freak, Harry Blackmun. Here’s what it says about the fact that each branch has its own, independent sphere, but that taken together, sentencing in the broad sense is a shared funtion:
“Historically, federal sentencing—the function of determining the scope and extent of punishment—never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government. Congress, of course, has the power to fix the sentence for a federal crime, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37 (1820), and the scope of judicial discretion with respect to a sentence is subject to congressional control. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). Congress early abandoned fixed-sentence rigidity, however, and put in place a system of ranges within which the sentencer could choose the precise punishment. See United States v. Grayson, 438 U.S. 41, 45-46, 98 S.Ct. 2610, 2613-14, 57 L.Ed.2d 582 (1978). Congress delegated almost unfettered discretion to the sentencing judge to determine what the sentence should be within the customarily wide range so selected. This broad discretion was further enhanced by the power later granted the judge to suspend the sentence and by the resulting growth of an elaborate probation system. Also, with the advent of parole, Congress moved toward a “three-way sharing” of sentencing responsibility by granting corrections personnel in the Executive Branch the discretion to release a prisoner before the expiration of the sentence imposed by the judge. Thus, under the indeterminate-sentence system, Congress defined the maximum, the judge imposed a sentence within the statutory range (which he usually could replace with probation), and the Executive Branch’s parole official eventually determined the actual duration of imprisonment. See Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). See also Geraghty v. United States Parole Comm’n, 719 F.2d 1199, 1211 (CA3 1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 133 (1984); United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979); United States v. Brown, 381 U.S. 437, 443, 85 S.Ct. 1707, 1712, 14 L.Ed.2d 484 (1965) (“[I]f a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will”).”
So while SCOTUS understands that, viewed holistically, sentencing is a shared function, it does so precisely by understanding that each branch has a role that it alone controls. For the executive, that is, at the front end, charging, and at the back end, clemency. The judicial branch has no constitutional role in either (but instead has its own quite important, but separate, functions).
I’ll address more of your comment in a future response.
One can read this quote to support idea that the proper ways for the executive to impact sentencng is through parole and/or clemency, not through unfettered exercise of charging and bargaining. You have already conceded that there are constitutional limits, and can be statutory limits, on what prosecutors can do in the exercise of charging and bargaining, so the only real debate is one of policy, not constitutionality. And I think it is good policy for prosecutorial use of their vast charging and bargaining powers to be more transparent and regulated. The main post and many of your comments reveal that, when you fear prosecutors are being too progressive, you largely agree. As is so often the case, it just matters whose ox is being gored.
Doug —
“One can read this quote to support idea that the proper ways for the executive to impact sentencing is through parole and/or clemency, not through unfettered exercise of charging and bargaining.”
But clemency itself is unfettered and never needs to be explained. I haven’t seen you say a single pardon or commutation should be reversed because of those characteristics. Should I say, “As is so often the case, it just matters whose ox is being gored”?
And bargaining is more transparent than you suggest. At the Rule 11 proceeding, the court carefully examines both sides to insure that the bargain is informed, voluntary, and fully placed on the record, together with its factual basis. Have you ever even been to a plea taking proceeding in federal court?
“You have already conceded that there are constitutional limits, and can be statutory limits, on what prosecutors can do in the exercise of charging and bargaining,…”
Right as far as it goes, but you omit the crucial distinction I emphasized. Prosecutors cannot violate limits established by constitutional or statutory law, but, in order to preserve the separation of powers (a separation you now barely pretend to want), the executive branch cannot be limited by either of the other two in the exercise of its DISCRETIONARY functions. Like pardoning, bargaining is one such function, see Bordenkircher v. Hayes. Indeed, in the exercise of its discretion, the executive cannot be compelled to bargain at all and, if it chose, could force every defendant to trial on the original indictment.
“And I think it is good policy for prosecutorial use of their vast charging and bargaining powers to be more transparent and regulated.”
We have the regulation the Framers intended by allowing any defendant, at his absolute option, to tell the prosecutor he can put any proposed bargain in a poorly lit area, and can either prove his case at trial beyond a reasonable doubt or shut up. At the bargaining table, defendants hold the ultimate trump card. If it’s good enough for the Framers, it should be good enough for us.
“The main post and many of your comments reveal that, when you fear prosecutors are being too progressive, you largely agree. ”
Nope. I have never said that that prosecutors, progressive or otherwise, should be free to flout the law, as Gascon is doing (and requiring his deputies to do). There is no such thing as “discretion” to violate statutory requirements. Your real complaint is that I’m not going to fall for the shell game that exempting X amount from the theft statute is merely an exercise of “discretion.” It is no such thing. It’s a line item veto by Gascon of the California legislature’s theft statute. Only there’s a problem:
He has no line item veto. He’s just calling his pro-thief ideology “discretionary conservation of resources” and hoping people will be fooled. But I’m not (and, while we’re at it, neither are you). He wants his value judgments about theft to displace those of the legislature. But the name for that isn’t discretion; it’s usurpation.
Still, I’m glad you brought up the ox getting gored. It’s plain by this point that you want regulation of the executive branch where, but only where, it will benefit criminals. If unregulated and no-explanation-required executive branch decisions — like pardons — wind up helping out drug dealers, hey, that’s great, let’s have more! It’s only when such decisions might wind up holding the crook accountable that, all of a sudden, we need regulation!
Far out!
My being on to this is exactly the reason I said earlier in this thread that any regulation of bargaining would have to be guaranteed ab initio to be outcome-neutral — i.e., not to make sentences either lighter or heavier. The reason you never responded to that part of my proposal is that you’re too honest: Given your overriding goal for “criminal justice reform” — fewer criminals in prison for shorter terms — if Proposal X isn’t going to reduce incarceration, then you’re only going to be so interested in Proposal X.
Yes, indeed, it does seem to depend on whose ox we’re talking about.
I do not think it problematic — or contrary to what the Framers likely wanted — that exemption from the exercise of extreme state criminal powers (clemency and declinations) needs less explanation and regulation than should the exercise of extreme state criminal powers to hurt individuals. That is why I always call you a big government guy, Bill, since you are seemingly eager to promote some strange notion of being “outcome-neutral” with respect to the exercise of extreme state criminal powers.
None of the Bill or Rights or really any part of the Constitution aspires to be “outcome-neutral” with respect to the exercise of extreme state criminal powers — instead its provisions so often seek to limits government powers to harm individuals and always calls for checks and balances — which reinforces my sense that I am on the right side of this debate both as a matter of constitutional doctrines and sound policy.
As so often is the case in our debates, you showcase your enduring trust of big government in this realm (and perhaps many others), and so it seems you do not want to demand (or even allow) more explanation and regulation of how the big government actor with the most power to hurt individuals operates. In contrast, I always distrust big government and always want to demand (and certainly want to enable) more explanation and regulation of how the big government actor with the most power to hurt individuals operates.
Put another way, I do not want to be too easy for individual oxes to be gored by government prosecutors. You, instead, seem to want to make sure prosecutors never have to explain or account (except sometimes at elections) how they go about goring oxes. I am pretty confident I have the Framers on my side, but I suspect King George is somewhere rooting you on.
Ah! So it DOES matter whose ox is being gored!! Glad we got that out of the way.
I just think you picked a peculiar ox to favor — the criminal. And no, criminals are not just the guy smoking a joint, or who jumps the turnstile. For the most part, the criminal is the fellow who steals the property you worked hard to accumulate, swindles people who were too trusting, breaks into your house or car, sticks a revolver in your ear to relieve you of your wallet, takes indecent liberties with your kids, and lots of stuff that’s considerably worse.
Contrary to your view of history, the Framers were not looking to shelter these characters. To the exact contrary, the protections afforded defendants were far less, and the punishments far harsher, in the Founding days than they are now.
Early on in this thread, you wondered if I might be interested in working with you to develop guidelines for prosecutorial transparency. I said that I would, if transparency of process was what the enterprise would actually be about, rather than simply a disguised form of tilting substantive outcomes in favor of less accountability for criminals. In light of your last comment, it seems I was wise to ask. Still, I remain of the view that transparency is a good thing, IF transparency is actually what we’re talking about.
And it’s true that the Framers were concerned about protecting individuals. But I didn’t know before now that crime victims, present (and future, when Mr. Nicey finishes his sentence) don’t count as individuals. Don’t we want the law to protect them, too? Are they not in danger from the indifference, blindness and unfairness the state can sometimes display?
Over the last generation — since the early Nineties — we have had more and more plea bargaining without any of the hedges you seem to want, together with — ready now? — less and less crime and — ready again? — over at least the last decade, less and less incarceration to boot! I’d say that’s a pretty good record. Wouldn’t you agree? So why cash in success for a new, untried regimen to govern plea bargaining — a system still almost entirely undefined by specifics but in which courts would be invited, not merely to crash through the separation of powers, but to do so in order to put a thumb on the scale for one side only — the defendant. Is it really a good idea for judges to become partisans?
And here I thought courts were supposed to be neutral! You’re right, I AM an old foggy.
P.S. I’m still wondering about some of the questions I asked. Do you agree with my definition of the prosecution function? Do you think prosecutors have a years-later veto over bills enacted by the legislature? Is it OK if prosecutors who think capitalism is a scourge simply take a pass on prosecuting property crime (which is by far most of it)? Is it OK if prosecutors who think the age of consent should be 12 rather than a legislatively declared 16 take a pass on raping eighth graders? Is it OK if prosecutors who think climate change is oversold take a pass on charging environmental crimes? Is it OK if prosecutors left over from the KKK take a pass on charging civil rights violations?
Inquiring minds want to know — ’cause, once we go down the path of Prosecutor As Veto-Wielder, there’s a wide open field of mischief to explore. You might think it’s going to go no further than giving a pass to potheads, but — as the Framers above all knew — once you leave law behind in favor of the personal opinion du jour, the place you’ll wind up won’t be The Land of Freedom. It will be the jungle.
Funny how you claim to be concered with crime victims, Bill, but then extol a plea bargaining system that can and often will harm them, too — see, e.g., Epstein’s victims. But more critically and problematically, you use this label “criminal” as somewhow distinct from “individual” without explaining whether the gal who (1) smokes a joint or (2) works in a medical marijuana dispensary, or (3) cheats on her wife or (4) downloads a picture of a naked 17-year-old or (5) drinks a beer at age 20 or (6) drives 80 MPH or (7) fails to follw a mask mandate or (8) uses a vaccine for her wife should be branded an Otis “criminal” that you say the “Framers were not looking to shelter” or instead gets the special Otis blessing as an individual “the Framers were concerned about protecting.” (Of course, not long ago, I might have asked whether a gal wanting to marry a gal is a criminal or an individual in the unclear Otis world for sorting out those who are undeserving of our concern.)
Let’s start there. Imaging eight people doing the things I just listed. Who gets to decide which ones should be branded an Otis “criminal” and subject to all the consequences or instead get Otis special protection as an “invidivial”? (There are, of course, potential victims to all these activities, and I now often hear proseutors wanting to brang all drug crimes as really violent crimes.) That you are so eager to describe a “criminal” as distinct from “individuals” is so vey telling (and I think a revealing reminder of the kind of thinking that likely explains why some government officials sometimes seem to treat certain persons as sub-human).
The main post here complains about an effort by a prosecutor to call a version of #8 a criminal, and you were critical of that effort. Why? On what basis other than that you do not like when hidden and unregulated discretion impacts the “special Otis people” (who are never defined but who I suspect often get special treatment by all sort of big government agents). Rather than just hoping prosecutors do not unwisely use their extreme powers to excessively harm the “special Otis people,” I would prefer to have systems in place — which the Framers surely would not have opposed nor sought to prevent — which work to make government powers and its discretionary exercise more transparent and regulated to protect us all. The persistent irony in your unprincipled efforts to now assail the work of so-called progressive prosecutors is that you look past the fact that so many big government CJ types like you were always eager to champion, and protect from scrutiny, prosecutors exercising extreme and unregulated power to be “do-gooders.” But only now do you fret when some new folks in power have a different vision of being a “do-gooder.”
P.S. You have not answered my questions as to whether you think federal prosecutors over the years VETOED parts of federal drug laws and federal child pornography laws. I am nearly certain that federal prosecutors regularly decline and/or avoid investigating all cases involving small amount of illegal drugs and small numbers of downloaded illegal pictures. There are no de minimus exception from Congress, so have federal prosecutors long been guilty of leaving federal “law behind in favor of the personal opinion du jour.”
I think this question extends back to way back when you were a prosecutor, so I am hoping you can speak to this precise issue based on personal experience (and whether you think we have become “the jungle” as a result). If you cannot remember back that far, perhaps just explain whether the failure of the Trump justice department to go after the hundred of thousands of people now working in the state-authorized marijuana industry amounted to a Trump era veto of federal law prohibiting marijuana dealing. In these cases, of course, many are involved in large-scale (and very open) violations of federal law. I know marijuana legalization is the “opinion du jour” of many on the left, but I would like to understand why you think AG Sessions and Barr were so keen on allowing such a large marijuana jungle to grow under their nose. Do they not care at all for certain types of crime victims, or is this issue not so easily demagogued?
Just three points to start out with:
1. You say, “Funny how you claim to be concered with crime victims, Bill, but then extol a plea bargaining system that can and often will harm them, too — see, e.g., Epstein’s victims. ”
I have no clue where you get the idea that I have “extolled” the plea bargaining system. I have done no such thing, and you ought not to be making such a claim. I have said, to the contrary, that trials are preferable, but that plea bargaining is a necessary and acceptable alternative given the enormous amount of crime we have. I held forth on that theme at length, here: https://www.crimeandconsequences.blog/?p=2845
Of course, if your numerous friends in the defense bar think plea bargains are so awful, maybe they could stop demanding them, ya think? Ready to step up and get them to demand trials?
2. “The main post here complains about an effort by a prosecutor to call a version of #8 a criminal [Dr. Gokal, where a doctor was prosecuted for using vaccine he otherwise would have had to throw away] and you were critical of that effort. Why?”
First and foremost, because it was idiotic.
And it WAS idiotic, right?
Second, because as the court promptly found, it was contrary to long-existing law as failing to state probable cause.
3. As happens so often, you walk past questions you prefer not to answer and instead stay determined to be on offense. But they’re important questions critical to the any worthwhile analysis of the roles of legislatures, courts and prosecutors. So I will repeat them and hope for answers.
“Do you agree with my definition of the prosecution function? Do you think prosecutors have a years-later veto over bills enacted by the legislature? Is it OK if prosecutors who think capitalism is a scourge simply take a pass on prosecuting property crime (which is by far most of it)? Is it OK if prosecutors who think the age of consent should be 12 rather than a legislatively declared 16 take a pass on raping eighth graders? Is it OK if prosecutors who think climate change is oversold take a pass on charging environmental crimes? Is it OK if prosecutors left over from the KKK take a pass on charging civil rights violations?”
The point of these questions is to drive home the crucial difference between (1) a prosecutor who leaves a bunch of cases on the editing room floor because he simply doesn’t have the resources to do them all, vs. (2) the Gascon/Ogg type of prosecutor, who leaves a bunch of cases on the editing room floor because he or she thinks he/she has to right and the power to re-weigh a value judgment previously drawn by the legislature in a way the “progressive prosecutor” finds Insufficiently Enlightened for Us Elites.
As I say, the name for that is not discretion. It’s usurpation.
1. Bill, in the prior comment you said: “Over the last generation — since the early Nineties — we have had more and more plea bargaining without any of the hedges you seem to want, together with — ready now? — less and less crime and — ready again? — over at least the last decade, less and less incarceration to boot!” That sounds to me like extolling a system with “more and more plea bargaining.” So, to answer your question, I get the idea that you are extolling our current plea bargaining system from your own comment celebrating that we have had “more and more plea bargaining without any [reforms seeking more transparency and consistency].”
3. I am trying to understand what you mean by a “veto over bills enacted by the legislature.” Because you were a federal prosecutor and have argued in defense of existing federal drug prohibitions, I want to know if you think federal prosecutors have vetoed federal drug prohibitions by almost never prosecuting low-level possessors and lately looking past massive marijuana distribution operating in open view in dozens of states. I cannot adequately answer your question about folks like Gascon/Ogg stating their prosecutorial policies and priorities unless and until you explain whether you think it better that “enlightened” federal drug prosecutors keep their policies and priorities completely hidden and subject to inconsistent and impossible-to-assess application. As I mentioned before, I generally prefer prosecutors to state their policies and priorities before acting AND in a clear manner so that their exercise of extreme powers against the individual can be known and assessed in the community. But, you keep dodging my questions about federal drug prosecutions — which I think you personally helped develop and apply — leading me to wonder if secrecy and subterfuge are the real prosecutorial interests you seek to champion. Again, King George would be very proud, especially if he has his own star chamber.
So please try again to explain whether federal drug prosecution practices amounts to “discretion” or “usurpation” when it comes to low-level drug possession and/or modern marijuana businesses? Once you provide an answer, I can better address whether I think Gascon/Ogg are doing anything all that different than Ashcroft/Barr — other than being more honest and transparent about how they use extreme and unchecked powers.
I sometimes think you’re just pulling my leg, and this is one of those times.
1. “Extol” has a specific meaning, to wit, to praise lavishly or glorify. It’s a far, far cry from extolling to say that plea bargaining is useful and (for practical purposes) needed for increasing the number of prosecutions and thus helping to reduce crime. That would be a hat-tip to its utility, you bet, but it hardly bespeaks the gushing praise denoted by the word “extolling.” And that’s without going into my numerous criticisms of plea bargaining, starting with that it so often lets defendants off with accountability for only a fraction of what they’ve done.
Not that I need to tell you this. You know as well as I that acknowledging the usefulness of and need for X is scarcely “extolling” X.
2. “I am trying to understand what you mean by a “veto over bills enacted by the legislature.” Because you were a federal prosecutor and have argued in defense of existing federal drug prohibitions, I want to know if you think federal prosecutors have vetoed federal drug prohibitions by almost never prosecuting low-level possessors and lately looking past massive marijuana distribution operating in open view in dozens of states.”
No I don’t, for simple reasons I’ve already explained. Pot is unhealthy, but the feds have to deal with lots of drugs that are even worse, not to mention massive frauds, human trafficking, armed bank robberies and the whole nine yards. Where you’re prioritizing enforcement because you have limited resources, that is not a veto, and no sensible person thinks otherwise. Where you’re refusing to enforce ab initio because your value judgments are at odds with those of the legislature, that most assuredly IS a veto (albeit a patently illegal one, just a Gascon’s ab initio refusal to do any enhancements is patently illegal (as the court found)).
I know you know the difference, so why pretend that you don’t?
P.S. The fact that people like Gascon and Ogg brag openly about their vetoes (while never using that word) hardly makes their usurpation any better. Nor is it even the honesty you say you see in it. It’s pandering to their pro-druggie base so they can raise yet more campaign funds next time.
P.P.S. The suggestion that you might not be able to see a difference between Ashcroft/Barr (did you mean to say Sessions/Barr?) and Gascon/Ogg is less exasperating than hilarious. Like I say, pulling my leg.
No, I meant Ashcroft as well as Barr because I wanted to mention an AG when you were working as a prosecutor for the feds. And here is where I think all these (dissimilar) prosecutors are doing the quite similar job of “prioritizing enforcement because you have limited resources,” albeit in different ways of assessing which resources ought to be sensibly conserved and how. Gascon and Ogg and Krasner and many other new prosecutors seem to believe that using limited prison space on less serious offenders — or giving overly extended prison time to even serious offender — is both bad policy and even constitutionally problematic. (I also sense they worry that arresting/charging certain offenders, like those guilty only of using drugs, may make these people more likely to commit future and more serious crimes — but I cannot read their minds, just like I do not know why AG Sessions and Barr allowed a massive marijuana industry to grow under their watch despite its federal illegality. Perhaps their pro-pot base — now including the likes of Peter Thiel and John Boehner — led them to only brag about nullifing federal law behind closed doors at those DC cocktail parties that still seemed to go on in the Trump era.)
Notably, Gascon is operating in a jurisdiction that had prosecutors using their discretion in a way that led to exreme prison overcrowding — in the past, CA prosecutors (mis)used their discretion to functionally produce a corrections system repeatedly found to be unconstitutional. Plata made plain that a distinct appoach to punishment law and practice by state prosecutors was needed. And Gascon ran on a promise to make big changes, was elected by the people, and now is seeking to implement them. You dislike those changes (as maybe will the voters now seeing them in operation). But, it makes sense for prosecutors to unconstitutional excessive punishment practices by “prioritizing enforcement [differently] because you have limited [prison] resources.” What you call “pandering” is speaking to the people about how they plan to remedy a system that so many voters — on both side of the aisle — are eager to change. (Notably, I do not recall you complaining about Trump pandering to his “pro-druggie base” when he ran a SuperBowl commercial about his decision to spring Alice Marie Johnson or by having he speak at the RNC (and, of course, Trump seemed to have more criminals on his payroll than any progressive prosecutor has had the guts to hire).
Of course there can be HUGE difference bewtween different prosecutors as to priorities and practices, which is EXACTLY why anyone seriosuly committed to the rule of law ought to be seriously interested in having prosecutorial discretion subject to greater transparency and regulation. That prosecutors can be so different is exactly why we ought not be content just “trust” how they exercise their discretion to exercise their extraordinary powers.
And this is where I started — since you seemingly do not like how this new breed of elected prosecutors define their priorities and practices, I would like you to now join me in calling for prosecutorial discretion to be subject to greater transparency and regulation. Despite all your words and wordsmithing, it is still unclear to me if you are prepared to call for prosecutorial discretion to be subject to greater transparency and regulation. Are you? Might we start with the federal system, which we both know well and which lacks the direct electorial control of prosecutors that typically exists in state systems?
P.S. Saying you do not extol the current plea bargaining process is like saying Churchill did not extrol democracy — if you are not a fan of the status quo, please explain what forms of greater transparency and regulation of plea bargaining practices we could together champion.
I am flattered to the moon to be compared to Churchill.
I’m not a fan of the status quo but I’m not a critic of it either. Trials are better but bargains are faster and cheaper, and in a world with lots of crime to deal with, faster and cheaper is going to have the edge. Not much I can do about that. There is a reason that judges, prosecutors and defense lawyers ALL are OK with doing so much bargaining.
Like I say, in order for us to work on transparency-for-prosecutors guidelines, we would have to agree on (1) how the prosecution function is defined, and (2) a goal of outcome neutrality, so it actually IS about transparency/process and not just a disguised way to push the system toward less serious sentences.
And just to re-iterate, my definition of the function of a prosecutor is this: The role of the prosecutor is, within constitutional limits, to suppress crime by exonerating the innocent and convicting the guilty, and, as to the latter, to promote sober punishment that serves the goals of just dessert, deterrence, incapacitation, and if possible rehabilitation.
Do you agree?
I agree that we tend to gravitate toward the fast and cheap in the US, as so McDonald’s has more outlets than restaurants with Michelin stars. But both types of restaurants are subject to transparency and regulation at to how they make their meals. I just want prosecutors to be subject to some transparency and regulation as to how they make their deals (where even more lives are at stake).
I suppose I generally agree with your definition at the most general level, but I am still not sure what you mean “by suppressing crime by exonerating the innocent and convicting the guilty” and “sober punishment” in the context of your prior comments about limited resources. Did AGs Sessions and/or AG Barr betray their roles as the nation’s top prosecutor when allowing the marijuana industry to grow dramatically even as Congress resisted calls for reform of federal prohibition? Did they have a responsibility to arrest John Boehner given that he was issuing press releases about how best to fund illegal marijuana dealers?: https://www.prnewswire.com/news-releases/former-speaker-of-the-house-john-boehner-to-host-first-ever-national-cannabis-event-300733512.html
If you think it critical to start with shared premises, I certainly would be prepared to sign off on the American Bar Association’s (wordy) definition in Standard 3-1.2 Functions and Duties of the Prosecutor, 4th ed 2017: https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/. Is there any part of this lengthy definition you find problematic?:
ABA:
(a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.
(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.
(c) The prosecutor should know and abide by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction. The prosecutor should avoid an appearance of impropriety in performing the prosecution function. A prosecutor should seek out, and the prosecutor’s office should provide, supervisory advice and ethical guidance when the proper course of prosecutorial conduct seems unclear. A prosecutor who disagrees with a governing ethical rule should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order.
(d) The prosecutor should make use of ethical guidance offered by existing organizations, and should seek to establish and make use of an ethics advisory group akin to that described in Defense Function Standard 4-1.11.
(e) The prosecutor should be knowledgeable about, consider, and where appropriate develop or assist in developing alternatives to prosecution or conviction that may be applicable in individual cases or classes of cases. The prosecutor’s office should be available to assist community efforts addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.
(f) The prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, the prosecutor should stimulate and support efforts for remedial action. The prosecutor should provide service to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A prosecutorial office should support such activities, and the office’s budget should include funding and paid release time for such activities.
I certainly think all the prosecutors we have been discussing, though different in many ways, could reasonably claim to be acting consistent with these ABA standards. And yet I still want them to be subject to great transparency and regularity and regulation in the exercise of their vast discretion. (Notably, part (b) speaks of “exercising discretion to not pursue criminal charges in appropriate circumstances,” and that would seem to pick up marijuana conspirator John Boehner. But I would rather have a Cole memo spell out “appropriate circumstances” rather than have this done without any guidance at all circa 2018-2021.)