Advocates of criminal justice reform propose curtailing the use of criminal law and relying more on nonpunitive approaches, such as psychological treatment for mental illness and substance abuse. But there is some cognitive dissonance here. Many criminal justice reformers would actually love to see state and federal prosecutors more aggressively pursue certain criminals: those who commit white-collar offenses such as bribery; contempt of Congress; false statements; fraud (bank, election, mail, securities, tax and wire); money laundering; obstruction of justice; perjury; and tax evasion.
Prosecutors have broad discretion to determine which crimes and suspects they pursue and how they pursue them. Such discretion is necessary for optimal efficiency, job performance and distribution of power in a constitutional democracy. Still, prosecutorial discretion is not absolute. For example, Jackie Johnson, former district attorney for Glynn County, Georgia, has been charged with violation of her oath of office and obstruction of a police officer based on the allegation that she delayed arrests in the murder of Ahmaud Arbery. Johnson’s situation is extremely rare but not unprecedented; in the first half of the 20th century, some prosecutors were reprimanded or removed for allegedly condoning crime, in particular organized crime.
Unfortunately, we suspect that prosecutors like Johnson routinely decline to prosecute individuals for ulterior reasons — not because they lack probable cause but rather because they fear political backlash, are biased in favor of the suspects (such as police officers, friends, campaign donors or powerful public officials) or are biased against the victims (often racial minorities). Many of these bad-faith decisions to not pursue charges, we think, cross the line from permissible prosecutorial judgment to obstruction of justice.
When refusing to prosecute serious crimes and dangerous people, prosecutors actively frustrate key goals of the criminal justice system: minimization of future crime through incapacitation, general deterrence and rehabilitation; retributivism, or giving criminals the punishment they deserve; and expressivism, or communication of society’s core values.
How, then, might prosecutors be motivated to start shifting their focus from minor street crimes, which they have been overpunishing, to white-collar crimes, which they have been underpunishing? One possibility is to start electing and reelecting prosecutors who promise to take white-collar crimes more seriously.
A second possibility is to treat delinquent prosecutors in the same way that Georgia State Attorney General Chris Carr is treating Johnson: by charging them with obstruction of justice.
A third possibility is to expand duty-to-report laws to cover derelict prosecutors. Some duty-to-report laws are binding on all adults; others are mandatory only for adults with certain occupations, usually physicians, nurses, social workers and teachers. We propose a narrower kind of rule, specifically a supplement to American Bar Association Rule 8.3, which already requires that a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” to “inform the appropriate professional authority.” Our proposed supplement would require attorneys and judges to alert the appropriate state bar associations whenever they have a substantial basis to believe that a certain prosecutor is declining to prosecute for impermissible reasons, notably personal or political bias in favor of a given suspect or against a particular victim.
A fourth possibility is to limit prosecutors’ power over grand juries. A grand jury’s finding of no probable cause to proceed with charges is generally final. Neither victims nor the public can challenge it because, given grand jury secrecy, they have no access to the evidence they would need to establish prosecutorial misconduct or bad faith. We propose relaxing grand jury secrecy either by making grand jury transcripts accessible as public records or by allowing select members of the public, such as victims of the crimes being investigated, to observe grand juries in real time.
We hardly claim that these four proposals would solve the main problems in our criminal justice system: mass incarceration, racism and police brutality. But they might very well help alleviate the problem of unequal justice.
If this country is genuinely dedicated to equality before the law, we need first to acknowledge the problem of white-collar criminals’ relative impunity and then start making some concerted collective efforts to address it.
Ken M. Levy is the Holt B. Harrison professor of law at the Louisiana State University Law School. Zachary D. Kaufman is an associate professor of law and political science at the University of Houston Law Center.
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