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Federal Prosecutors' Unchecked Power and Zeal Creates Prison Nation

No other arm of the federal government is less accountable.

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“The public is so often fed the impression that DAs and AUSA offices are operating as honest public servants whose integrity cannot be questioned. But of course they are the necessary partners in making the United States a prison nation, unparalleled in its mass incarceration of the population,” said Mara Verheyden-Hilliard, of the Partnership for Civil Justice Fund, which has sued police for abusing political protesters.

“I’m sure you know, in addition to the highlighted cases of gross prosecutorial misconduct, which are certainly more pervasive than is covered by the media, there is the day in and day out process by which defendants are falsely charged and overcharged and forced to plead guilty to some offenses in order to avoid the prosecutor’s threat of decades more of imprisonment,” she said. “It’s a terrible and vicious weapon, and coupled with the use of police lies accounts for the fact that 97 percent of cases don’t go to trial. It has effectively eliminated the constitutional right of defense for most.”

Let’s look at several ways that federal prosecutors operate without checks and balances. These prosecutors are nominated by the president and approved by the Senate for four-year terms. They run offices that can have dozens or hundreds of deputies working for them, where they both lead and take cases from all the federal police agencies.

1. Abuse of Prosecutorial Power

The everyday abuses of prosecutorial power Verheyden-Hilliard cites are hidden in the most recent Justice Department Office of Professional Responsibility reports that do not even cite names, courts, cases or changed verdicts when discussing a handful of professional misconduct complaints—such as falsifying or withholding evidence.

“Prosecutors think that they are doing the lord’s work and that they wear the white hat,” Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer told the Wall Street Journal, commenting on a USA Today series on prosecutorial abuses in late 2010. “When I was a prosecutor, I thought that everything I did was right… Even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.”   

Federal prosecutors are notoriously tight-lipped. However, there is one area of law where they have broken with their usual silence and described why they are interpreting the law at their discretion: the marijiana cases.

“The DOJ has made a centralized decision to avoid making centralized decisions,” said Columbia Law School’s Daniel Richman, who teaches federal criminal procedure and said the political decision by Attorney General Eric Holder to let local prosecutors do what they wanted was “outside the normal dynamic” where Washington keeps a tight rein on priorities.

“They are delegating to U.S. attorneys to do what they want to do,” Richman said, saying that the DOJ’s current pot policy “looks like the Prohibition Era,” referring to a century ago when alcohol was illegal but the public supported its use. In 2013, 17 states and the District of Columbia have legalized pot under different circumstances, most having to do with medical use, but U.S. attorneys have decided how tough to be in shutting down state-licensed operations.

Montana’s top federal prosecutor, Obama appointee Mike Cotter, arguably is the most aggressive, raiding greenhouses and dispensaries in full SWAT-team fashion without warning even as his state’s legislature was poised to revise its medical marijuana law. Cotter is seeking to put people away for life, saying marijuana has no medical value. As of this May, 31 defendants took plea deals, two went to trial and lost, and one charge—going after a provider’s accountant—was thrown out by a judge, the AP reported.