Prosecuting Crime, Seeking Justice, and Protecting the Innocent

From the perspective of a person of faith, and a citizen of this country, I have been deeply distressed by the decline in recent years of prosecutorial discretion as the wise exercise of power in the pursuit of justice. Too often, and especially at the federal level at least from Washington, D.C., the policy has sometimes appeared to be that every case referred by law enforcement should be prosecuted and every conviction should be emphasized by seeking the maximum sentence. Politicians, of both parties, have made the situation worse by enacting mandatory minimum sentences to prove to constituents that they are tough on crime, resulting in the incarceration of millions of Americans, some for relatively minor and first-time offenses. Seeking the just result in a particular case in terms of the human factors involved has become more difficult and less valued.

Under the traditional understanding of prosecutorial discretion, a prosecutor was encouraged to consider whether seeking a criminal conviction, even when the evidence supported it, was the best course of action or instead whether alternatives measures, including forgoing prosecution, were mandated by justice. And the prosecutor had the original burden of ensuring that innocence was protected, taking the affirmative steps to investigate whether a prosecution was supported by more than the bare minimum requirement of probable cause. The ABA Standards of Criminal Justice Relating to the Prosecution Function (Standard 3-3.9(b)) advise that a prosecutor is not obliged to pursue all charges that the evidence might support and may exercise discretion to decline to prosecute based on such factors, inter alia, as “the prosecutor’s reasonable doubt that the accused is in fact guilty,” “the extent of the harm caused by the offense,” and “the disproportion of the authorized punishment in relation to the particular offense or the offender.” How often do we hear about the exercise of such discretion today?

A contemporary practitioner of the traditional form of prosecutorial justice may be found in Craig Watson, the new district attorney in Dallas, Texas, whose election as a reformer demonstrates that the public is receptive to the idea.

In the on-line reason magazine, Rodney Balko writes:

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics. A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

You can read more here.

Hat-tip to David Bernstein of the Volokh Conspiracy (here), who concludes that "Watkins certainly seems like a fair-minded breath of fresh air, who takes the biblical injunction "tzedek, tzedek tirdof" (justice, justice thou shalt pursue) seriously." And here's one Catholic who can only say "Amen!"

Greg Sisk