June 15, 2019
Criminal justice reformers have come to give so much attention to the role of prosecutors because of the wide-spread realization of the profound power of prosecutors to shape the nature and application of modern criminal justice systems. In this context, some prosecutors are eager to claim that they ought not be the focus of so attention (and criticism) because they are just tasked with enforcing the law and not making it. Usefully, Josie Duffy Rice last year in in this commentary at The Appeal, headlined "Prosecutors Aren’t Just Enforcing The Law — They’re Making It," did a terrific job highlighting numerous examples of how "DA associations are using [their] power to defeat a wide range of bipartisan reform efforts." Similarly, others have spotlighted how, in this words of this piece, "Prosecutors Are Banding Together to Prevent Criminal-Justice Reform."
Two recent stories about prosecutors, one state and one federal, have me thinking about these issues today. The state one comes from Oregon and provides another example of prosecutors trying to shape the applicable criminal law. It is reported in this new local article fully headlined: "District Attorneys Quietly Passed the Hat to Overturn New Oregon Laws Reducing Jail Time; Emails newly obtained by WW illustrate a deep divide in the state, between the people who make the laws and the people who enforce them."
The federal story is not about prosecutors seeking to make the law, but rather about their disinclination to enforce the law against persons from their ranks. This Hill commentary, headlined "Feds gone wild: DOJ's stunning inability to prosecute its own bad actors," explains the ugliness here:
One was caught red-handed engaged in nepotism. Another, a lawyer no less, admitted to shoplifting at a Marine barracks store. A third leaked sealed court information to the news media. And a fourth engaged in fraud by turning a government garage into a personal repair shop.
Four cases, all solved in the past month, with suspects who cost taxpayers hundreds of thousands of dollars and significant breaches of public trust.
But these weren’t your everyday perps. All were U.S. Department of Justice (DOJ) employees who are supposed to catch other criminals while working for the FBI, the Drug Enforcement Administration (DEA) and U.S. attorneys’ offices. Instead, they broke the law or violated the rules. And all managed to escape prosecution, despite their proven transgressions.
Recent Justice Department disciplinary files tell an undeniable story. Under the leadership of Inspector General (IG) Michael Horowitz, DOJ’s internal watchdog is doing an outstanding job of policing bad conduct inside America’s premier law enforcement agency.
And DOJ is doing a poor job of punishing its own. In cases closed in the past month, more than a half-dozen FBI, DEA, U.S. attorney and U.S. marshal officials were allowed to retire, do volunteer work, or keep their jobs as they escaped criminal charges that everyday Americans probably would not.
So, these stories reveal what insiders have long known: prosecutors do help make and shape our criminal laws, and they sometimes do not enforce them.