Every week seems to bring new revelations of the need for reform of the U.S. criminal-justice system. The most vivid recent example has been a flurry of warnings from the bench in California against corrupt and lawless prosecutors. A panel of three judges on the Ninth Circuit Court of Appeals in January, in Pasadena, Calif., erupted when California’s deputy attorney general asked the judge to uphold two murder convictions from 1995 against a man, Johnny Baca, despite lower courts’ having concluded that prosecutors had secured the convictions with false evidence. Judge Alex Kozinski said that if the state’s attorney general, Kamala Harris (a candidate for the U.S. Senate), did not abandon the case, the court would “name names.”
The hearing was posted online, under a new court policy, and lawyers circulated the video until it became a statewide cause célèbre, as the facts were laid bare to show a brazen use of admittedly false evidence to secure a conviction, and no resulting investigation of the prosecutors or disciplinary action against them. Kozinski claimed that the source of the problem was that state courts, to which federal courts normally defer in state-originated prosecutions, would not overturn or rebuke lawless prosecutors because state judges are elected and voters generally have given prosecutors a blank check to convict unlimited numbers of accused regardless of the shabbiness of the prosecutors’ methods. This is Nancy Grace’s America.
Kozinski referred to an “epidemic of prosecutorial misconduct” and said, “They got caught this time but they are going to keep doing it because they have state judges who look the other way.” One of the Pasadena panel of judges, Kim Wardlaw, blamed “elected judges”: “They are not going to be reversing things.” At Baca’s trial, a prosecutor falsely testified, corroborating testimony he knew to be false. Attorney General Harris, under the Circuit Court threat to publicize the identity of the dishonest prosecutors, abandoned the effort to sustain the original convictions of Baca, 20 years after they were brought down. But even at that late date, the new district attorney in Riverside, where the murders occurred, denied intentional misconduct by his office and promised to try Baca a third time.
In 2010, the Northern California Innocence Project published a report that identified 707 cases in the previous eleven years in which there was clear prosecutorial misconduct. Only six prosecutors were subjected to any disciplinary procedures and state courts upheld 80 percent of the convictions despite the misconduct. All of these must be considered flagrant violations of the Bill of Rights, and there is no reason to doubt that the same pattern obtains in many other states.
The California saga and many others emphasize the danger of lionizing prosecutors, who effectively operate outside the law. The recent indictment of prominent New York State legislator Sheldon Silver by Manhattan district attorney Preet Bharara has been widely acclaimed. Mr. Silver must be presumed innocent, though that is certainly not the spin most of the media have put on it, but the shameful, politically motivated persecution of former New York state senator Joseph Bruno is an instructive and cautionary tale. So are deposed governor Eliot Spitzer’s vendetta against insurance executive Hank Greenberg and former New York Stock Exchange head Richard Grasso, and New York U.S. attorney Cyrus Vance’s ill-considered arrest of IMF chairman Dominique Strauss-Kahn, on a false complaint, denying Strauss-Kahn the presidency of France, an office he would have filled much more capably than the incumbent, who profited from his unjust arrest.
The most egregious of all these false prosecutions of prominent politicians may have been the bribery charges directed against former Alaska senator Ted Stevens. (There are other contenders, including the imprisonment of former Alabama governor Don Siegelman, the ultimately failed indictment of former House of Representatives majority whip Tom DeLay, and the dubious conviction of Scooter Libby, the former chief of staff to Vice President Dick Cheney.) Stevens, an eminent seven-term senator, was charged in 2008 by prosecutors with improperly accepting a cut rate for the renovation of his home from a man in the oil-drilling business to whom the senator’s good will could be important. Prosecutors knew the allegations to be false; they withheld exculpatory evidence, and briefly obtained a conviction that caused Stevens to lose re-election narrowly, before the whole case collapsed. Judge Emmet Sullivan said, “In nearly 25 years on the bench, I have never seen anything approaching the misconduct and the mishandling that I’ve seen in this case.” A few of the prosecutors were investigated, though dozens of senior officials were closely involved in such a prominent case.
One of the prosecutors whose conduct was examined, Nicholas Marsh, committed suicide, which compounds the Stevens tragedy, but he was the only co-author of that travesty who paid a significant penalty for it. Two other prosecutors were the chosen scapegoats and received 40- and 15-day suspensions from practice, which were later reversed with payment of back pay because of procedural bungling by the Department of Justice. These were the paltry results of what should have been a wave of disbarments and indictments and convictions of Justice Department officials. Many had hoped that, after zealot prosecutors had torn down such a prominent senator falsely, and the chief aide to the vice president very questionably, the senior levels of the administration and Congress would move to curb the rogue state American prosecutors had become, terrorizing other office-holders like the French Revolutionary Committee of Public Safety. There has been no such response from those quarters.
There is a gradually rising level of concern over the antics of prosecutors, and effectively a pincers movement is forming, composed of alarm at gonzo prosecution and concern at the hideous cost of imprisoning the largest per capita share of the population of any country in the world. The defeat in 2013 of the 24-year Brooklyn, N.Y., district attorney, Charles Joseph Hynes, who had falsely charged numerous political opponents over many years, may indicate a change in the tide. But these concerns over prosecutorial integrity are colliding in some measure with the anti-terrorist trend toward increased powers of prosecution and detention, and the use, for reasons ostensibly involving national security, of increasingly sophisticated and widespread electronic surveillance.
Broadly stated, there is general unease at prosecutorial lawlessness in conventional areas, even as government monitoring of and intrusion into citizens’ lives intensifies, and the pattern of over-criminalization of American life is reinforced by a previously unnecessary focus on counterterrorism, which understandably attracts considerable public support. Yet Edward Snowden’s revelations of the National Security Agency’s surveillance and data mining of the U.S. public has shocked millions of Americans. The drive to over-criminalize public affairs probably began its maximum acceleration with the Watergate affair, which glorified the destruction of government leaders, no matter how thin the evidence, and treated media lynchings of official suspects as the courageous triumph of a free press. And while 9/11 and other terrorist attacks were a fair justification for a lot of this increased surveillance activity, there is also a good deal of well-founded concern that terrorism is being exaggerated as a justification for a level of state intrusion that in earlier times would have been considered completely intolerable.
Beneath these lofty national-security arguments, both budgetary and humanitarian concerns are now percolating. State prisons, especially, are terribly overcrowded. The John D. and Catherine T. MacArthur Foundation recently pledged $75 million to assist local jails and prisons to remove from their stuffed and unsanitary premises those who are nonviolent, mentally ill, or too poor to raise bail. Twelve million people, 4 percent of the entire population, are cycled through the detention system each year, and there are 731,000 people festering in these fetid lock-ups on any given day. The MacArthur effort is an admirable start on a severe problem.
What is desperately needed is a comprehensive reconciliation of the national-security, human-rights, rehabilitation, and public-safety policy arguments tangled up in this terribly difficult situation, which has grown like a tumor, unattended and almost unnoticed, for decades.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at firstname.lastname@example.org.