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If someone has actually committed a crime, then letting them off because you don't like the prosecutor's conduct seems like the wrong answer for the rest of us.
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Depends on the crime and the accused. But generally, I agree with the sentiment.
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What about the victims of the crime? Shouldn't there be some remedy for the prosecutorial misconduct that doesn't let a criminal off the hook?
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In most of these instances, we're talking about victimless crimes. Things created by statute to protect property rights.
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Isn't that what everyone elects prosecutors to do? Exercise sound judgment about which offenses to prosecute? If someone does a good job at that, isn't that good for everyone?
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I don't think a "broken windows" policy is defensible. And that's perhaps the best example of selective or "make an example" prosecution. It's lazy. It's fear mongering. "Let's nail the junkies and petty thieve to send a shiver down the spine of those we don't feel like investing time to catch." I see little difference between this sort of deterrence and Martha Stewart's prosecution (I know people who've done worse and had to simply pay a fine and disgorge). Deterrence as justification is what perpetuates capital punishment, the most idiotic abuse of our justice system. You can't be a bit pregnant here. You're either for a perverted mindset that ties back to public drawings and quarterings as a device to scare and control subjects, or you're not.
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Agree with all of this, and especially that there should be consequences for abuse of prosecutorial discretion, but letting a criminal off the hook is not really a consequence for the prosecutor, except in the sense that we see that prosecutors become focused on convicting whomever they go after, as PLF notes -- but that is part of the problem, isn't it? Would rather find an answer that involves effective oversight of prosecutors, as with law enforcement more generally.
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I agree with both of you there. I think oversight is preferable. But deterrence/public example thinking must be eradicated. And as to historically targeted communities, selective prosecution should be a viable defense. A system cannot prey on the weak and not be held to account for doing so. Nailing a few prosecutors for doing so every decade won't cut it. The embarrassment of seeing a guilty person freed regularly is the lesson that needs to be sent to prosecutors who abuse their power on an ongoing basis. If you're preying on poor and minority communities, you need to be outed. And oddly, similarly, if you're opportunistically nailing the likes of Martha Stewart where others would get a pass, so you can aid your career, you need a reversal to stop you from further similar acts.
