Thursday, October 6, 2011

The Increasing Power of State and Federal Prosecutors.

The balance of powers between our legislative, executive and judicial branches of government is increasingly shifting to the power of the executive branch of government.  This is increasingly evident in the power of the executive branch when it comes to criminal law.  Increasing our legislative elective officials who continue to pander to themselves in the hope of getting re-elected continue to pass criminal laws which continue to give more and more power to prosecutorial authorities, which is part of the executive branch.

In New Jersey for example, the county prosecutors, through the largess of our elected officials, wheel tremendous amount of power in almost every aspect of criminal prosecution and procedure. 

Because of these powers the judicial branch of government, the role of our judges in the system is increasingly abrogated.  Accordingly, to a large extend the hands of the judges to dispense justice is thwarted by the decisions of the prosecutors.  Many legal scholars agree that under the current system prosecutors have more power than the judges themselves.

For example in New Jersey the decision to grant or deny a defendant’s admission into the pre-trial intervention program exclusively rests with the prosecutor.  Under New Jersey State law unless the defendant can prove that the prosecutor abused its discretion in denying admission (and almost impossible burden), the judge hearing an appeal for denial of admission cannot overturn the prosecutors decision.

Even more frightening is the power of the prosecution to extract guilty pleas from defendants who for many reasons should be having their cases decided by an impartial jury.  However, because of legislatures desire to pass more and more get tough on crime laws, such as mandatory sentencing, extended terms, eighty-five percent period of parole disqualification, and other harsher penalties, many defendants have no choice but to plead to a crime which they have not committed, because the risk of losing a trial is just to great. The implicate warning to defendants; if you dare to go to trial and lose, you will pay the consequences.

In New Jersey like most States this is referred to as the “trial penalty”, an unspoken word in the criminal justice system which defendants understand all to frequently.  If you have the nerve to go to trial and lose you will receive the trial penalty which is the high costs of going to trial and lose.

It is no secret that legislatures starved of money to fuel the criminal justice costs are quick to make it easy for prosecutors to obtain convictions without the costs of having defendants to go to trial. In affect it matters little if the person charged with a crime is innocent or guilty.  What matters instead and is often the most controlling and deciding factor; does the defendant have the courage to spend many years in prison to prove their innocence, when they can receive a probationary term or flat sentence of a few years?

In many cases because of mandatory extended term sentences an innocent defendant will spend many decades or life imprisonment for relatively minor offenses, or more serious crimes, if they opt to go to trial, as opposed to taking a plea of a few years.

These mandatory sentences are universally imposed on defendants charged with offenses involving handguns, drugs, repeat offenders, and intent of distribution near a school zone, park, or public housing complex.

The danger in a democracy which relies upon the balance of powers to check the tyranny from any one branch of government is that increasingly more and more power is given to prosecutors which often lead to abuse, unfairness, and arbitrary decisions.

In New Jersey jurors are told during the trial that they are to decide guilt or innocence’s, and it is the judge that decides the sentence.  However, in reality that is not true, because in many respects it was the prosecutor and legislative branch that decided the sentence long before the trial even started. Accordingly, in New Jersey jurors should be told of these mandatory minimum sentences that the defendant faces with a verdict of guilty.

Another way that prosecutors unfairly extract pleas in New Jersey is to overcharge the defendant and to indict him or her on charges which simply do not fit the facts of the crime, in other words over charge the defendant with more serious crimes. For example charging a defendant with intent to distribute a controlled dangerous substance when the defendant is only carrying a few grams of the substances.

Because of this imbalance in the criminal justice system in New Jersey fever and fever defendants risk the uncertainty of a trial.  New Jersey like most states do not publish the percentage of felony cases that go to trial but according to nine States that publish such information only one in forty cases go to trial.  In the federal system it is even less only three percent of the criminally accused decided to go to trial.  The United States Bureau of Justice Statistics found that between the years 1986 to 2006 the ratio between pleas and trials doubled.  This is no surprise because last year there was only one acquittal for every 212 guilty pleas and trials in federal court.  Thirty years ago there was one acquittal for every 22 cases.  There is no doubt that with those numbers that many innocent federal defendants are opting for a plea.

Because of these abuses prosecutors are quick to believe the police officers who initially investigate and bring and make the arrests.  Because of this power, that is, everything they say will be believed by the prosecutor, errant law enforcement officers are more likely to be involved in arrests of innocent people or be engaged in willful police misconduct and abuse.

It is time that our legislative elected officials stop pandering to themselves and their reelection hopes and start reining in the power of the executive branch and allowing the courts and judges to dispense justice. This unfair imbalance of power is also taking a toll on many criminal defense attorneys, who must languish and suffer with their clients over the decision as to whether or not to take a plea from a defendant which the attorney might seriously and honestly believe is innocent, but cannot afford the risks of going to trial.

Law Office of Vincent J. Sanzone, Jr.
Dated: October 5, 2011
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