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Op-ed: Power of prosecutors needs some limits

First Published      Last Updated Jul 17 2017 10:52 am

The recent Tribune op-ed, "Utah prosecutors need no additional oversight," written by members of the statewide prosecutor's association, contained inaccurate and misleading information. In the end, the authors argue (unconvincingly) that the imposition of new disciplinary committees and regulations are unnecessary and will compromise public safety. I beg to disagree.

The authors assert that "prosecutors' power is limited." On the contrary, the prosecuting attorney's office is the single most powerful component of the criminal justice system. Their powers far exceed those of the police, judges, defense lawyers and corrections officials. I say this in part because the role of the prosecutor transcends the entire justice system.




The prosecutor works in close collaboration with law enforcement, and this is a good thing. However, the authors mistakenly assert that "prosecutors only begin after a police investigation is complete." This isn't always the case. Sometimes prosecutors are called upon to respond directly to a crime scene, participate in the preparation of warrants and even take part in offender interrogations.

Prosecutorial power also extends to the critical decision of whether or not to file criminal charges against an individual. While police make the arrest, the district attorney ultimately decides whether to prosecute and what the specific charges are going to be. Once a criminal charge has been filed, the prosecutor decides what happens to the case.

A common public misconception is that prosecutors go to trial on many of the cases in which they file charges. Not true. In felony cases, fewer than 10 percent ever go to trial. So what happens to the other 90 percent? The prosecutor cuts a deal. We call it plea bargaining. This occurs when the prosecutor sits down with the defendant's attorney and negotiates a guilty plea, often to a less serious offense than the one originally charged. Judges must sign off on the plea deal, but this is often little more than a rubber stamp. Courts in the U.S. reject very few plea agreements.

The plea bargain accomplishes many things, but chiefly it allows the district attorney to gain a conviction without the time and cost of bringing the case to trial. The case simply moves forward to sentencing.

Additionally, the authors argue that prosecutorial power is limited by such things as preliminary hearings, trials and appeals. Considering how few criminal cases ever reach trial, it's smoke and mirrors to suggest that these judicial proceedings can serve as a deterrent to prosecutorial misconduct. The ordinary criminal offender in America typically accepts a plea deal, is sentenced by the court (with plenty of input from the prosecutor), and then shuffles off to serve her sentence without benefit of a public trial. With so few trials, it should come as no surprise that only a minuscule number of cases ever receive appellate review.

Finally, the authors suggest the appropriate agency to investigate and discipline prosecutors who fail to follow the rules is the Utah State Bar. The state bar is the regulatory agency with the authority to investigate and discipline attorneys, including prosecutors. The difficulty, of course, is that oversight requires transparency, and state bars typically do not allow public access to their records. I would argue that it is impossible to have effective oversight without public access to state bar records. I wonder how many prosecutors in Utah have been investigated and disciplined, say, over the past five years?

One critically important issue that the authors' commentary failed to address is the growing problem of fatal shootings by police officers of unarmed citizens. Sadly, these cases have become all too common across the country and here in Utah, yet rarely do we see them prosecuted. Is this not a good example of an area where enhanced review and oversight might truly serve the public interest?

There is no question that most prosecutors are honest, dedicated public servants. That said, given their vast and largely unchecked power, it is both prudent and reasonable for society to impose broad oversight over the exercise of that power and to further demand strict accountability for their actions.

Michael Norman is the author of five mystery novels set in Utah. He is a former police officer, state parole board member and a retired professor of criminal justice at Weber State University.

 

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