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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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This month, John Lester Gross III, a 48-year-old Californian, became another casualty in the federal government’s escalating war on marijuana. He plead gulity and was sentenced to 19-plus years for creating and running a dispensary in Sacramento and a nearby farm, where federal agents said they found 2,800 plants and 100 pounds of trimmed pot.

Like pot entrepreneurs in other states with non-federal laws allowing medical marijuana, Gross thought he was operating under state law, and most critically, after the federal Department of Justice told its prosecutors to back off marijuana cases early in President Obama’s first term. But California’s four U.S. attorneys decided that they did not like the industry’s rapid growth and began enforcing a gamut of federal laws to destroy it, especially taking aim at the large cultivators and retailers.

Prosecutors appointed by Obama, such as Andre Birotte, Jr., the first African-American to hold the post in the district where Los Angeles is located and a lawyer praised by the civil rights leaders, recently told a local public radio station that they were acting with prosecutorial discretion by not going after caregivers and patients, but targeting “drug dealers with storefronts.” U.S. Attorney Melinda Haag similarly touted her “measured approach” in seeking to seize the property of Berkeley’s biggest dispensary.

Longtime criminal defense lawyers don’t buy these "reasoned" explanations, however, because they know, as few Americans do, how powerful federal prosecutors are.

“You can’t trust the police to draw the lines of big-versus-small cases. You can’t trim the marijuana laws around the edges,” said Harvey Silverglate, a criminal defense lawyer and author whose books criticize a wide array of federal prosecutions. “Society has to make a decision. Is it willing to endure the expense and corruption that these laws engender?”

America’s political system is not about to stop the prosecutorial juggernaut filling federal prisons. It’s not just marijuana cases. The U.S. House is not about to pass immigration reform with amnesty and a path to citizenship, which accounts for a third of federal cases in 2012. Nor is it about to legalize marijuana, which accounts for a fourth of all federal drug offenses. Nor is it about to change how prosecutors with battlefield mentalities are held to account within the Justice Department.

“It is hard to overstate the power of federal prosecutors,” wrote New York University Law School professor Rachel Barkow, citing the massive growth in the number of federal crimes, the severity of punishments, the size of the federal prison population, and the prosecutors’ total control of the charges and punishment in almost every case.

“There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion to bring charges, to negotiate pleas, or to set their office policies,” she wrote in 2008, when 95 percent of federal cases were not even tried before judges or juries, but instead filed with the federal courts as done deals.

Today, the number of federal cases tried is even smaller. Of the 84,173 cases resolved in 2012, federal statistics report that only 3 percent went to a judge or jury trial. Almost all, including the top categories—immigration, drugs, financial fraud, weapons offenses—had prosecutors who were, as Barkow wrote, “the final judges in their own cases.”

Even more disturbing is the percentage of cases where the accused did not harm others. The U.S. Sentencing Commission reported that in 2012 immigration and marijuana accounted for upward of 40 percent of recent prosecutions, even though offenders overwhelmingly were not commiting violent crimes. Eighty-four percent of the immigration cases involved being illegally in the U.S.