Law Enforcement, Accountability, and Democracy

Apropos of my column this week about democracy and incarceration, Slate's Dahlia Lithwick and Richard Hasen have put together a compilation of scary videos from judicial election campaigns this year.

I disagree with Lithwick and Hasen when they partly blame Supreme Court decisions, including Citizens United, that have allowed more money and free speech in these campaigns. It isn't the freedom to criticize judges that's the problem. If we're going to have judicial elections, for example, I'd like to see more money spent on efforts to unseat judges like Colorado's Jolene Blair and Terence Gilmore. Both were recently reprimanded for refusing to turn over exculpatory evidence while they were prosecutors, which resulted in the wrongful conviction of Tim Masters. The problem isn't too much speech. It's that the criminal justice is infused with backward incentives.

I largely agree with Lithwick and Hasen's larger point—that electing judges is problematic. As is, again, the general trend toward more democracy and more politics in the criminal justice system. We'd probably be better off if the position of district attorney were a civil service job and not an elected position, too. There are some things we shouldn't put to a vote. The majority can't vote to enslave a minority, or to confer fewer rights on some groups than others. The power to imprison is one of the more awesome powers we grant the government, and democracy is too crude an instrument to protect our rights in the face of that power.

But even here, the alternative isn't optimal. Voters are too easily manipulated by crime fearmongering and tend to reward, not punish, overly aggressive prosecutors, as well as punish judges who show the slightest hint of balance, mercy, or a better-than-narrow view of due process. But I've also written in the past about how rarely prosecutors are punished by courts, the state bar, or the state attorney general for even egregious violations, even in cases that result in wrongful conviction. Given what we already know about accountability in civil service jobs—that is, that there's very little of it—I don't know that there's any reason to think it would be much different for prosecutors. Still, making DAs civil servants would least insulate them from the need to justify their job to voters by racking up convictions, which in turn might eventually attract more people to the position whose concept of justice is a bit more nuanced than filling up the prisons with bad guys.

What would work? Short of turning around public opinion on these issues, the best immediate reform I can think of would be to do away with absolute immunity for prosecutors, which I would think could be done with an act of Congress. The doctrine isn't in the Constitution, and was essentially a whole-cloth Supreme Court construct. At the very least, prosecutors (and for that matter, judges) should be susceptible to civil liability when they not only violate someone's rights, but actually commit a criminal act in the process.

It's not so much that we can sue all of the bad prosecutors out of office; it's more about removing the cone of invincibility around the position. Former U.S. Attorney General John Ashcroft says diluting absolute immunity for prosecutors will make them "gun-shy" about taking difficult cases. I doubt that. It will make them gun-shy about cheating to win those cases. Ashcroft's position on immunity (as well as that of groups like the National District Attorneys Association) is similar to Fraternal Order of Police Executive Director Jim Pasco's position on citizen recordings of on-duty police officers. Both fear that increased accountability will make law enforcement officials hesitant to act. They're right. But it will make them hesitant to act—and in some cases cause them not to act—in precisely those instances where we want them to give more careful thought to what they're about to do.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    "What would work? Short of turning around public opinion on these issues, the best immediate reform I can think of would be to do away with absolute immunity for prosecutors, which I would think could be done with an act of Congress. The doctrine isn't in the Constitution, and was essentially a whole-cloth Supreme Court construct"
    There are a lot of those "constructs" What in the world is the logic that if a state agent messes up somebody's constitutional rights, they can't be prosecuted? It constitutional rights are to be seriously enforced, at a minimum the person violating constituional rights should be fired. Depending on intent, prosecution is in order.

    But look at elections, and the media covers...witch, aqua buda, and whether someone had an undocumented worker.
    When is the last time anyone saw a serious, factually correct of anything from the MSM on TV?

  • Anonymous||

    I don't get this Aqua Buddha thing.

  • ||

    It doesn't matter that you don't believe in Aqua Buddha... the important thing is that Aqua Buddha believes in you.

  • ||

    I don't either. I'm going with the Budda shaped bong.

  • ||

    There are none so blind as those who will not see.

  • T||

    Frankly, I've never understood the doctrine of sovereign immunity. I'm an engineer, and if I practiced as a PE, I'd be personally liable for everything that went out with my name on it. Same with doctors, lawyers, architects, and most 'professions'. But when somebody works for the .gov, they're held to a lower standard, despite having the effectively unlimited resources of the state behind them. How does that make any goddamned sense?

    Oh, right, because they work for the .gov their hearts are pure and filled with only good intentions. Plus, it'd be so hard to get good people if you had actual standards for behavior. Screw that.

  • ||

    Sovereign immunity is very simple: when the people making the laws make laws covering themselves, they are going to give themselves special privileges.

    There is another option here: competition. Have multiple, competing prosecutors. Allow defendants to choose who they want to go against.

  • ||

    There is another option here: competition. Have multiple, competing prosecutors. Allow defendants to choose who they want to go against.

    And for our daily example of throwing half-understood market concepts at every problem without regard for whether it makes a lick of sense...

  • ||

    Maybe if you bothered to explain why this isn't viable, you wouldn't look like the statist asshole that you are.

  • ||

    You're a complete and utter dolt if you can't see immediately why it's not viable.

  • ||

    I don't know about Episarch, but I am a complete and utter dolt, and can't see immediately why it's not viable, so would you take the time to clarify for me.

    Thanks in advance.

  • ||

    I only explain the obvious to dolts who pay tuition.

  • ||

    I want to see you write it, statist. I only threw it out for discussion, but it's telling that you haven't bothered to explain why you have a problem with it.

  • waffles||

    Mr. Tulpa, with your phd, please explain to this complete and utter dolt what you mean. Please?

  • waffles||

    nevermind. this complete and utter dolt doesn't care.

  • Wind Rider||

    There are dolts and then there are credentialed dolts. What defines completeness?

  • ||

    A dolt is said to be complete provided that every Cauchy sequence in the dolt converges to an element of the dolt. A complete normed linear dolt is said to be a Banach dolt.

  • ||

    Which figures, since Banach was Polish.

  • ||

    Off topic, but why can't electronic election machines come loaded with the candidates various stated positions on a number of issues to make it easier to decide who to vote for? Other than the top candidates for federal office, I rarely have any idea what the hell any of the candidates stand for.

  • ||

    Well, the practical problem lies in determining who gets to write the issue positions.

    If it were up to the campaign, everyone would be in favor of helping babies and old people and freedom.

    If it were the opposing campaign, every candidate would stand for sacrificing children to the Aqua Buddha.

    And in politics, there's no such thing as a neutral 3rd party...

  • ||

    I'm fine with having the campaigns write their own positions and submitting them with the candidate name (or not). I would expect these writeups to be biased, but they still want to reflect what their position is (prolife, antigun, etc). Essentially, saying your republican is part of your platform and you positions are extensions of that, but come on, it can't be that hard to add a link to text.

  • kc||

    I find it's much quicker and easier to find out a candidate's stated positions these days, when almost everyone has a web page. Still requires some research/paying attention to find out if their history is consistent with their stated positions, tho.

  • ||

    congratulations. 90% of voters aren't going to take the time to search out every name on their form. I'm not hearing an argument why we can't do what I propose.

  • Cyto||

    That's an interesting technological solution. Here's a different type of solution: Show up to the polls prepared to vote, already familiar with the candidates and their positions. If you are not so prepared to vote in a particular race, abstain from voting in that race.

    See how that works? Addresses the problem, doesn't add any new problems and recognizes that 3 minutes in the voting booth is not enough time to become educated and form an informed opinion with enough confidence to support a vote.

    The only possible exception to this rule is voter ballot initiatives. My position is that if a ballot initiative is not clearly and obviously a net plus, you should vote no. Actually, it would be nice if more legislators took this position as well.

  • ||

    Yeah, and local clerks of office and school board officials. I had like 50+ random local officials that I was expected to choose. Do you really expect people to go to a hundred different campaign sites (some of which just won't exist) just to choose minor local officials? Jesus, we have the technology, its not THAT hard to use it.

  • ||

    Totally agree here. Ballot initiatives are worded so vaguely, you have no idea what they really are. The safe "libertarian" bet is "when in doubt, vote 'no'".

  • Pip||

    "why can't electronic election machines come loaded with the candidates various stated positions on a number of issues to make it easier to decide who to vote for?"

    Because it would constitute electioneering at a poling place.

    "Other than the top candidates for federal office, I rarely have any idea what the hell any of the candidates stand for."

    Stop being lazy and do your homework.

  • ||

    Because it would constitute electioneering at a poling place.

    Ok, good point.

    Stop being lazy and do your homework.

    Yeah..nice in theory...reality falls short. I still think there needs to be another way.

  • ||

    I live across the street from a polling place. I wonder what would happen if I put up a sign that said "Exodus 23:2"?

    (“Thou shalt not follow a multitude to do evil”)

  • ||

    I think you'd quickly see one of those agencies appear that never succeeds in catching criminals when you let the defendant choose who is prosecuting him. I know that's who I'd choose if I was ever charged with a crime. I don't know the answer off the top of my head but that ain't it.

  • ||

    That would certainly give lazy prosecuters with no ambition one hell of a gravy train if I understand your concept properly.

  • ||

    "" Have multiple, competing prosecutors. Allow defendants to choose who they want to go against.""

    Why should the defense get to choose? I can understand that it's in the interest of the state to put whom they want when they charge you with a crime. Plus your idea make room for the "too bad, it was your pick" when you get screwed.

    I'd much rather see a semi-low bar as to when prosecutors lose immunity.

  • ||

    Sovereign immunity is somewhat justified because the state -- even when it is operating within its constitutional limits -- is going to harm a lot of people, and you don't want the state bogged down spending taxpayer money defending itself from neverending streams of lawsuits.

    That being said, I don't see how prosecutors who cause harms by violating their basic duties under the law (ie, hiding exculpatory evidence) should be covered by sovereign immunity. It should only apply to officials who are acting consistent with their official duties.

  • IceTrey||

    The easy solution to frivolous lawsuits has always been a "loser pays" system.

  • ||

    Unfortunately the loser is usually the taxpayer.

  • ||

    That's not an acceptable solution, since it would essentially render the wealthy and large corporations immune to even legitimate lawsuits from the poor. Suing McDonald's, for example, would be risking financial ruin for even a middle class person.

  • ||

    I don't believe in paying for the oppositions entire legal team, but a standard time based fee to be paid by the loser (along with court time) would seriously cut down on frivolus lawsuits.

  • ||

    I wonder how many juries would award the poorer party just to prevent that party from losing too much. They already have a tendency to want to punish the wealthy.

    How about if the case is thrown out as frivolous the plaintiff's lawyer has to pay a fine or something? That way, any person can still bring a suit but most lawyers will examine the chances more carefully to avoid a penalty on themselves.

  • ||

    I agree that it would cut down on frivolous lawsuits, but you're throwing the baby out with the bathwater. If you make the penalties onerous enough to discourage frivolous lawsuits, they're going to be onerous enough to discourage any lawsuit by a non-wealthy person.

  • ||

    This thread is dead, but just to get in the last word, I'd point out that many lawyers that take on class actions are doing it pro-bono for the payout and don't expect payment from the aggrieved. So the cost of the lawsuit is on them. similarly, the cost of losing would be on them. So yeah, less lawyers may be willing to take on a lawsuit of a non-paying individual if the case doesn't appear strong, but I'd say that's a small price for keeping illegitamit lawsuits from occuring so much.

  • Mark||

    Maybe immune from suits involving the dangers of hot coffee, but not immune to suits with actual merit.

    Giving lawyers who work on contingency something to lose cannot be a bad thing. Certainly no worse than giving prosecutors pause for thought by making them personally liable for their actions.

  • Mo||

    Considering the woman with the hot coffee won, it was considered a suit with merit.

  • Mo||

    Also, lawyers who work on contingency do have something to lose. Lots of hours of free labor and non-reimbursed court costs.

  • ||

    There are suits with merit that still lose in court for whatever reason. Not every losing suit is a frivolous one.

  • ||

    True, but there are far more suits without merit, that will never come to trial in a loser pays / contingency system. You'd pretty much have to be a lawyer to support the status quo.
    Perfect? No. More just? Absolutely.

  • Mohindrance||

    Also, the rest of the Western world uses a loser-pays system, without the big business oppression liberals always predict when the subject comes up.

  • Jordan||

    and you don't want the state bogged down spending taxpayer money defending itself from neverending streams of lawsuits.

    Yeah, actually I do.

  • Robert||

    It's not really a lower standard, it's just that you answer to the gov't rather than to the people affected directly by your job. The problem is with the way gov't defines and administers the job, not with the way they hold their employees liable.

    The concept exists in the private sector too, as respondat superior. If your boss tells you to do it this way and only this way, and that results in someone's getting injured, it's your boss's fault if you do it the way your boss says. If you deviate from the way the boss says, but in ways that the boss should anticipate you might well do, it's still your boss's fault if that results in injury.

    So the problem with gov't is not really with the immunity conferred on their agents, but with the boss's (gov't's) immunity itself that it should not have the power to confer, and which encourages it to supervise employees in risky ways.

  • ||

    Part of the reasoning given for sovereign immunity is that, if state employees were personally liable for everything they did, either you would have no state employees, or the state employees you did have would do nothing.

  • ||

    Come on, say it. Say it!

  • omg||

    "either you would have no state employees"

    You say that like it is a bad thing.

    "or the state employees you did have would do nothing."

    Are you saying that without sovereign immunity, state employees would sit back doing nothing while collecting a fat paycheck from the state?

  • Tman||

    I think the biggest problem with AG's receiving absolute immunity is that they use this as a tool for career launching. The bigger the

    Had the past played out differently Spitzer would be currently eyeing a presidential run from his recently won senate seat had he not got caught using whores. I cringe at the faux populist rage he would've enabled during the financial crisis, and shudder to think what laws he could've abused with that kind of power.

    AG's shouldn't need complete immunity. I agree with Ashcroft partially, in that AG's should be protected from the people they are prosecuting, but that's no reason the should have complete immunity from everyone.

  • In Time of War||

    They're prostitutes, sir, not whores. This guy spitzer, on the other hand, is scum.

  • kc||

    Hadn't seen Spitzer in action until I saw him "interview" Dana Loesch -- what a partisan ass he is. I don't think he let her finish one sentence, despite her continuing to talk over him.

  • ||

    The issue wasn't that he was using prostitutes (google "Sex At Dawn" for a rational explanation thereof), but that he used his position to prosecute competing call girl rings.

    And none of this would have come to light if he had kept quiet about the mortgage mess that was about to explode.

  • ||

    "I agree with Ashcroft partially, in that AG's should be protected from the people they are prosecuting, but that's no reason the should have complete immunity from everyone."

    Only if the public has the right to audit the prosecuter's work on a yearly basis and have their position reviewed by a board afterwards...and the results made public.

  • Tman||

    Only if the public has the right to audit the prosecuter's work on a yearly basis and have their position reviewed by a board afterwards...and the results made public.

    Agree 100%. I don't think it's a bad idea to give immunity to people they are trying to prosecute, however.

  • ||

    If a board finds the complaint legitimate and rules against the prosecutor, then I say he should be open to civil suit (personally, not compensable from state funds). If the board finds the complaint illegimate, there is no recourse.

    Also, I believe the same system should be employable for all professionals (doctors, engineers, CPA's). Civil suits in front of juries determining blame are a bane on our society. Sure, once a finding has been made, let a jury debate the damage amount, but don't expect them to understand any sort of technical, medical or legal process.

  • Tman||

    I agree with this, again. There is a severe lack of accountability within the AG/prosecution end of our legal system.

  • Whores||

    "Spitzer would be currently eyeing a presidential run from his recently won senate seat had he not got caught using whores."

    FTR, we used him.

  • ||

    I'm with von Mises that the purpose of elections is not to ensure the finer points of quality but the grosser ones.

  • Wind Rider||

    Hmm. How about a semi annual grand jury, specifically charged with the review of prosecutorial conduct, with the case load determined by even the appearance of malfeasance, via some form of public nomination for review, and the prosecutor/presentor being an out of state (possibly retired in their home district) DA with no connection to those being reviewed? Findings of violation result in immediate suspension, with appropriate trial action to follow for potential punishment for bad activity. Nah.

  • ||

    It's a start. Let's build on this.

  • ||

    I think what we need to do is re-task the FBI and the DOJ with enforcing the Constitution. Make them responsible for going after abuses of power at all levels of government, including prosecutors and judges.

    A state agent who violates the civil rights of a citizen should be criminally liable. If the locals don't string 'em up, the feds should.

    This is basically just an expansion of what the feds did during the heat of the black civil rights struggle, so it has a gold-plated pedigree.

    When they start telling FBI agents and US Attorneys that the path to advancement lies in having the scalps of prosecutors, judges, and/or elected officials and bureaucrats on the wall, we'll start to see progress, and probably not before.

  • BakedPenguin||

    Of course, giving them far fewer laws to enforce (e.g., only ones where someone(s) violate the rights of others) would be a rather beneficial change.

  • ||

    ..and this.

  • Fluffy||

    I agree with Radley here.

    It's really pretty simple game theory.

    Let's say we set up a game where you gained benefit X by completing task Y. When played honestly, the odds of successfully completing the task are Z%.

    We then allowed game participants to cheat at task Y, with the rule being that if you were caught cheating the only punishment was that you wouldn't receive X for that try and that try only.

    If the odds of getting caught are less than Z%, the game as designed would reward you the most if you cheated every time.

    There has to be some downside to cheating that is greater than the accumulated benefits one gains from cheating, or there's every reason for us to expect cheating in every trial.

  • ||

    There is cheating at every trial if the DA is crooked enough. The other missing component is moral approbation. None of the perpetrators are ever held up to any sort of moral shame after they do it. Further, the legal community has long since stopped regulating itself.

    There is an easy answer to this problem that does not require changing sovereign immunity or any other legal doctrine. That answer is for state bars to do their jobs and disbar prosecutors guilty of misconduct. That would raise the punishment sufficiently enough to deter misconduct.

  • ||

    ""None of the perpetrators are ever held up to any sort of moral shame after they do it.""

    Like Harry Calahan?

    The people like those who break the rules to put the bad guy away. We, in general, don't apply moral shame for those folks.

  • ||

    Trial by public opinion, a sad feature of humanity.

  • Robert||

    Good thinking, Mr. Balko.

  • Invisible Finger||

    Voters are too easily manipulated by crime fearmongering and tend to reward, not punish, overly aggressive prosecutors, as well as punish judges who show the slightest hint of balance, mercy, or a better-than-narrow view of due process.

    If the average American is a fascist at heart, should they get exactly that form of government?

  • ||

    Sure, but unfortunately the rest of us get it, too.

  • RandomGuyOnTheInternet||

    Why does the prosecutor always have to be a government employee?
    Why can't the aggrieved party hire his own attorney to prosecute the one who wronged him?
    As long as he follows the same laws and standards of proof what difference does it make who handles the prosecution?
    Why should a citizen have to convince some bureaucrat it's worth his time and effort to seek justice on his behalf?

  • Anonymous Coward||

    My solution is simple. If a person is wrongly convicted of a crime, the prosecutor and investigators serve the remainder of that person's sentence.

  • ||

    I would support that if it can be proven beyond reasonable doubt that the prosecutor or investigator deliberately covered up evidence or violated his or her duties in other ways that led to the conviction.

    A mere mistaken conviction is not necessarily the fault of the prosecutor. Hell, why don't you want to put the jurors in jail too, since they're the ones who reached the faulty verdict.

  • ||

    If unaccountability can be the measure for the degree of democracy and freedom in America - in practice, not in rhetoric - then the monopoly concept of 1 bench and 1 bar cannot possibly confer upon its citizens, in practice, anything but monopoly justice that looks more like dictatorship than democracy.

    If there is no reason for accountability, there won't be any, and if there is no remedy for unaccountability, there cannot be what any government claims to afford its citizens.

    Unchecked power is absolute power whatever else it may be called.

  • chiropractic||

    Thanks in advance for your cooperation with the above conditions. I hope you find it useful.It helped me with ocean of knowledge so I really believe you will do much better in the future I appreciate everything you have added to my knowledge base .
    Regards,
    chiropractic

  • دردشة||

    thanks

  • شات بنت مصر||

    Thank you, my dear on this important topic You can also browse my site and I am honored to do this site for songs
    http://www.xn----0mcg3at9ge.com
    This website is for travel to Malaysia
    http://www.xn----0mcg3at9ge.com

  • دردشه عراقية||

    Thanks

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement