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Chandra Bozelko: Criminal justice has always been politicized

Chandra Bozelko
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I’m a tad amused and confused by the hubbub over whether President Donald J. Trump, an elected official, has any legitimate authority to toy with the federal criminal legal system by getting Attorney General William Barr to weigh in on Trump’s old friend Roger Stone’s criminal case.

The Washington Post’s Editorial Board opined that the “most important role of the attorney general is to protect the department from improper political influence.” They called it an erosion of standards.

Rep. Ron Kind (D-Wis.), a former special prosecutor, tweeted that “There should be no political influence when it comes to our criminal justice system. Our judicial system has always maintained nonpartisan independence, it must stay that way.”

The president of the New York City Bar Association wrote to Justice Department Inspector General Michael Horowitz and the chairs and ranking minority-party members of the House and Senate Judiciary committees - Rep. Jerrold Nadler (D-N.Y.), Rep. Doug Collins (R-Ga.), Sen. Lindsey Graham (R-S.C.) and Sen. Dianne Feinstein (D-Calif.) - stating that “unequal treatment based on political influence is to be deplored.”

The criminal legal system is inherently political, and it didn’t happen when Trump made the Department of Justice his sandbox. Politics has been here all the while. I don’t know how the country’s governmental, legal and thought leaders forgot this.

Nowhere in the world except this country elects prosecutors. We are the only people who allow popular will to choose the person who will define crime and fairness for them. A full 47 states elect the attorneys who prosecute crime. They’re as elected as Trump is, and they run these courthouse proceedings. If I listen to members of Congress, the capitol’s paper of record and the New York State Bar, that should be deplorable, too.

Very few people see it that way.

The fact that the next election always looms influences prosecutorial behavior. Researchers examined prosecutions in North Carolina and found that a district attorney is 10% more likely to refuse a plea bargain and insist on a trial in the year leading up to their re-election, even though 84% of the time these candidates run unopposed, according to 2016 research by civil rights advocacy nonprofit Color of Change.

If the election is contested, the likelihood that they’ll forego plea bargaining and gamble with taxpayers’ money on a trial rises to 25%.

Such selfish risk-taking has consequences for all of us: 79% of wrongful convictions are owed to police/prosecutorial misconduct, according to The National Registry of Exonerations in 2018. We have no idea how much of that misconduct is motivated by designs on a confetti drop after their next political contest.

The best known example of this is the so-called Duke lacrosse case, where a woman falsely accused three Duke University students of rape in 2006. The prosecutor had been appointed and never faced the adversarial testing of an election; his first awaited him when the complaint against the students arrived in his office. The North Carolina State Bar found that his upcoming primary election motivated Durham District Attorney Michael Nifong to make public statements that the attack had happened - even call the students “hooligans” - and then engage in fraud and withhold exculpatory DNA evidence to keep the story going so he could appear tougher on crime than his opponent.

That’s far worse than Barr’s seeking leniency at Trump’s behest. And it happens in less scrutinized cases every day.

When Illinois was shifting from appointed prosecutors to elected ones - in 1847 - a state newspaper weighed in and warned that “power once surrendered to a people is seldom returned.” Switching from elections to appointment to choose our district attorneys wouldn’t be that hard, but it might enable bad actors as much as these elections do. Prosecutors can hide behind the relative permanence of their gubernatorial anointing to do whatever they want. Both systems have drawbacks.

But the fact that imperfection plagues how we choose our persecutors doesn’t excuse telling me you’re worried about politics influencing criminal justice now. It has for hundreds of years. You just didn’t notice.
Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at outlawcolumn@gmail.com.