"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Monday, March 26, 2007

Opposing Diversity

A recent challenge to the death penalty in Connecticut argued that prosecutorial discretion rendered the death penalty "arbitrary and capricious."

Complaints are also made from time to time that justice is "unequal" because sentences vary for similar crimes depending on the community in which they are commited.

Much negative comment ensued when a Virginia study showed that prosecutors exercize their discretion to pursue the death penalty more often in cases in which the victim is a child or a woman.

And in reporting on the "scandal" over the firing of eight US Attorneys, The Nation argues that some of the 8 may have been fired for lackluster pursuit of death-worthy cases. Not surprisingly, the Communist militant-turned- (correction: wrong Angela Davis)academic, Angela Davis, stupidly opines in the article, "Federal prosecutors are supposed to represent 'the people,' but they are nominated by the President and confirmed by the Senate. How do 'the people' have any connection to that?"

Back to Civics 101 for her.

Silly as her comment is, however, it reflects a fundamental misunderstanding that is shared by all the linked sources above: that prosecutorial discretion and executive use of discretion is unfair, unjust, and suspicious.

What these commenters do not mention in their attacks on the death penalty and prosecutorial discretion, is that without this discretion, the self-direction of our local governments would be threatened. The prosecutor is a part of the executive branch of government. As such, he is accountable directly to the people at the ballot box in most states. Even Angela Davis figured out that federal prosecutors are accountable to the President and Congress, while not realizing that this means they are accountable to the people who elect those officials.

What this all means is that prosecutors respond to local conditions. In a liberal locality, say San Francisco, you will find very few to no capital prosecutions. Why? The people of that community elect a DA who who reflects their liberal view that the DP should never be imposed: the DA will use his or her discretion in general deference to the lawful will of the electorate.

On the other hand, if the DA of Maricopa County, AZ wins election on a platform of zealous pursuit of appropriate death penalty cases, then the people will expect him to exercise his discretion in general accord with their lawful desire that he prosecute death-appropriate cases.

In either instance, should the people be dissatisfied with the prosecutors' exercise of discretion, he or she will be subject to being replaced at the next election.

These observations account also for the so-called geographic disparity in death sentences. If you commit murder in Maricopa County, you are more likely to be executed, because the people, speaking through the Arizona legislature and their elected local prosecutor, believe that the DP is an appropriate response to murder.

If, on the other hand, you commit the same murder in San Francisco, you can expect to avoid the death penalty, since the people of that community do not believe the general law of California permitting the DP should ever be used in their jurisdiction.

The abolitionists see it as "unjust" or somehow unconstitutional that the one murderer is executed while the other is not. But where the general law of the jurisdiction is being followed, and prosecutorial discretion and juror preferences produce different results, that's simply classic federalism at work. And just as I can chose not to live in San Francisco if I don't like their social policies, a murderer can "chose" to do his business in a more murder-friendly environment like S.F. If he takes the risk to murder in Maricopa, why should he benefit by application of the more lenient social and policy preferences of San Francisco?

Such policy differences and the attidude differences in jury pools among the states and even among political subdivisions within states, is universal in the criminal law. Yet before the abolitionists started complaining about these differences in the area of the death penalty, most people never gave the topic any thought, or if they did, they hailed the differences as proof of the legitimate and desireable diversity produced by federalism.

Yet these fundamental observations are ignored by the MSM and even the "academy," who see in the use of prosecutorial and juror discretion and in the concomitant geographic "disparity" something sinister and unacceptable. But where they conclude that the DP should be not available where the people want it because elsewhere the people do not want it, it can, with equal logic, be asserted that the disparity, to the extent it is even undesireable, could be cured by a uniform application of the death penalty, rather than its abolition.

Put another way, there is no consistent a priori reason why the people of San Francisco, who have (as is their right) abjured the use of the DP, should be able to supplant the will of the citizens of Maricopa County who want their prosecutor to pursue the DP when appropriate.

In sum, the complaints amongst the abolitionists about prosecutorial discretion and geographical disparities reduce to an attack on federalism and on the independence of the executive branch in carrying out its discretionary functions in response to the will of the electorate.

Not very democratic of them.


Windypundit said...
This comment has been removed by the author.
Windypundit said...

[Grr...clicked Publish when I meant Preview]

This anti-death penalty argument seems like nonsense.

Statistical differences between prosecutions in different communities are meaningless because it's impossible to separate out the effects of different public policies from the arbitrary preferences of the prosecutors.

Even if we could find inconsistencies or bias in the choices of prosecutors, are we really willing to say that anything less than machine-like statistical perfection is unacceptable? It seems absurd to require prosecutors to be superhuman.

Besides, we already have ways to reign in the peculiarities of prosecutors: We have judges and juries. When we send someone to death row, we do it with the approval of an agent of the state, an independent judge, and a panel of ordinary citizens chosen at random.

I suppose someone could argue that judges and juries are capricious too, but I'm not sure that gets you anywhere.

Our constitution sets up the independent judiciary and jury of one's peers as the gold standard for a just trial. Individual prosecutors, judges, and juries may fail and should be variously reversed, corrected, or punished for doing so, but in the absence of specific misbehavior, they are by definition, as perfect as our legal system needs to be.

Also, if inter-community prosecutorial variation means our system is unjust, isn't it unjust for all punishments and all crimes? Wouldn't we have to throw the whole system out? And then we'd have to replace it with...what?