Is Ted Cruz Satan? Discuss.

[Sidd Finch]

Originally Posted by Atticus Grinch

I think Ferguson is fucking up the coherence of everyone’s positions on prosecutorial discretion.

Not mine. Nor is Staten Island having that effect. And I suspect the same is true of you. My position is that prosecutorial discretion is a good thing, and that it should not be applied in a manner that is corrupt, racist, or generally douchey.

If anything, those events added the nuance that, when police defendants are involved, the prosecutor should be a federal or other independent agency rather than the local DA who depends on the police, but that's not an incoherence. Just a recognition of where conflicts make it difficult to exercise discretion appropriately. I would still want the agency to have discretion.

What pisses me off so much in this context was that they faked it -- they didn't want to say "we aren't prosecuting," but in Ferguson especially (to my understanding) they intentionally fucked up the proceeding to lose it. I simply could not imagine a prosecutor putting a witness he knew was lying to testify in favor of a defendant in any normal grand jury proceeding.

[Adder]

Originally Posted by Sidd Finch

Not mine. Nor is Staten Island having that effect. And I suspect the same is true of you. My position is that prosecutorial discretion is a good thing, and that it should not be applied in a manner that is corrupt, racist, or generally douchey.

If anything, those events added the nuance that, when police defendants are involved, the prosecutor should be a federal or other independent agency rather than the local DA who depends on the police, but that's not an incoherence. Just a recognition of where conflicts make it difficult to exercise discretion appropriately. I would still want the agency to have discretion.

What pisses me off so much in this context was that they faked it -- they didn't want to say "we aren't prosecuting," but in Ferguson especially (to my understanding) they intentionally fucked up the proceeding to lose it. I simply could not imagine a prosecutor putting a witness he knew was lying to testify in favor of a defendant in any normal grand jury proceeding.

Exactly. If you're deciding not to prosecute, fine, say that and be accountable.

But the charade that seems to have happened in Ferguson - and apparently happens routinely in cases with cop defendants - is not okay.

[Atticus Grinch]

Originally Posted by Sidd Finch

Not mine. Nor is Staten Island having that effect. And I suspect the same is true of you. My position is that prosecutorial discretion is a good thing, and that it should not be applied in a manner that is corrupt, racist, or generally douchey.

If anything, those events added the nuance that, when police defendants are involved, the prosecutor should be a federal or other independent agency rather than the local DA who depends on the police, but that's not an incoherence. Just a recognition of where conflicts make it difficult to exercise discretion appropriately. I would still want the agency to have discretion.

We’ve been around this mulberry bush before, but I prefer it when local prosecutors bring charges when they believe they can get a conviction under the criminal statutes from a legally constituted jury, and don’t when they don’t. Asking the AG or U.S. Attorney to make that call instead is not an improvement. If you want police officers to be accountable for murder, you need a baseline amount of social capital — the same amount that would logically cause Bob McCullough to lose the next election in a landslide. If that doesn’t happen, then neither McCullough nor the grand jury were wrong in their judgments of what was given to them. I would not prefer that these judgments be upstreamed to whichever political actor is willing to vigorously pursue charges any more than I want my wars declared by a “Coalition of the Willing.”

But it doesn’t bother me that others see it differently. Prosecutors should lose elections when they do not reflect their constituents’ idea of justice, on that we seem to agree. I just don’t like the idea of a Plan B for unfiled criminal charges because I see no logical end to that.

[Tyrone Slothrop]

Originally Posted by Atticus Grinch

If you want police officers to be accountable for murder, you need a baseline amount of social capital — the same amount that would logically cause Bob McCullough to lose the next election in a landslide. If that doesn’t happen, then neither McCullough nor the grand jury were wrong in their judgments of what was given to them. I would not prefer that these judgments be upstreamed to whichever political actor is willing to vigorously pursue charges any more than I want my wars declared by a “Coalition of the Willing.”

I don't get this. At least in theory I think *everyone* wants police officers to be accountable for murder. In specific cases, this gets obscured by different inclinations about how to interpret the facts, but no one thinks police officers should be able to murder people freely. Government decisions are made by institutions that are designed to be more or less receptive and accountable to political pressure. When we think that the voters are likely to make bad decisions (or cynically, when someone in the government doesn't want to have to answer to voters, a la Robert Moses), we find a way to insulate whoever makes those decisions from the voters. If one thinks that voters aren't going to reward even-handed enforcement of the law when it comes to police officer's murders, it makes every sense to make that less politically risky.

Most people who get mistreated by police don't have a lot of social or political capital. Obviously. So to say that police officers should only be prosecuted when people with political capital want it to happen is to say that they mostly shouldn't be prosecuted. I would rather the decision to prosecute have more to do with the actual facts of the particular case, and less to do with whether it upsets the right kind of citizen.

[Atticus Grinch]

Originally Posted by Tyrone Slothrop

I don't get this. At least in theory I think *everyone* wants police officers to be accountable for murder. In specific cases, this gets obscured by different inclinations about how to interpret the facts, but no one thinks police officers should be able to murder people freely. Government decisions are made by institutions that are designed to be more or less receptive and accountable to political pressure. When we think that the voters are likely to make bad decisions (or cynically, when someone in the government doesn't want to have to answer to voters, a la Robert Moses), we find a way to insulate whoever makes those decisions from the voters. If one thinks that voters aren't going to reward even-handed enforcement of the law when it comes to police officer's murders, it makes every sense to make that less politically risky.

Most people who get mistreated by police don't have a lot of social or political capital. Obviously. So to say that police officers should only be prosecuted when people with political capital want it to happen is to say that they mostly shouldn't be prosecuted. I would rather the decision to prosecute have more to do with the actual facts of the particular case, and less to do with whether it upsets the right kind of citizen.

“Let’s have criminal prosecution decisions be made by somebody insulated from the unpopularity of their decisions” sounds like a dystopian vision to me. The election of judges we can talk about, but executive branch folks being insulated from the blowback of their decisions is frightening to me.

Of course, I happen to think U.S. Attorneys and 100% of the FBI are amoral assholes, so that might be coloring my thinking here.

[taxwonk]

Originally Posted by Sidd Finch

Not mine. Nor is Staten Island having that effect. And I suspect the same is true of you. My position is that prosecutorial discretion is a good thing, and that it should not be applied in a manner that is corrupt, racist, or generally douchey.

If anything, those events added the nuance that, when police defendants are involved, the prosecutor should be a federal or other independent agency rather than the local DA who depends on the police, but that's not an incoherence. Just a recognition of where conflicts make it difficult to exercise discretion appropriately. I would still want the agency to have discretion.

What pisses me off so much in this context was that they faked it -- they didn't want to say "we aren't prosecuting," but in Ferguson especially (to my understanding) they intentionally fucked up the proceeding to lose it. I simply could not imagine a prosecutor putting a witness he knew was lying to testify in favor of a defendant in any normal grand jury proceeding.

I couldn't have put it better myself.

[Tyrone Slothrop]

Originally Posted by Atticus Grinch

The election of judges we can talk about, but executive branch folks being insulated from the blowback of their decisions is frightening to me.

As I'm sure you know better than I do, there are all sorts of governmental bodies whose functions are essentially executive who get insulated from voters. Who runs mass-transit in the Bay Area, and when did I vote for her? When there's a traffic jam, who does a voter vote out of office? Are you truly frightened by that, too, or is only the police who need unfettered discretion?

[Atticus Grinch]

Originally Posted by Tyrone Slothrop

As I'm sure you know better than I do, there are all sorts of governmental bodies whose functions are essentially executive who get insulated from voters. Who runs mass-transit in the Bay Area, and when did I vote for her? When there's a traffic jam, who does a voter vote out of office? Are you truly frightened by that, too, or is only the police who need unfettered discretion?

Who said anything about the police having unfettered discretion?

Yeah, I don’t like the BART Board either — they’re appointed by other politicians, but that’s because it’s a JPA, not for the purpose of insulating them from voters. The only people we intentionally protect from politics are federal judges, the Fed chairman, and schoolteachers. I do not favor expanding that list.

[Sidd Finch]

Originally Posted by Atticus Grinch

We’ve been around this mulberry bush before, but I prefer it when local prosecutors bring charges when they believe they can get a conviction under the criminal statutes from a legally constituted jury, and don’t when they don’t.

I think this is unrealistic for a number of reasons. First, the way it's stated -- I don't know if you mean it this way -- suggests that you don't believe prosecutors should ever "settle", as in accept a plea to a lesser crime when they believe they can prove a more serious crime. Again, I don't know if you mean it that way (depends on whether you mean "bring charges" to refer only to the actual charging phase, or to pursuing charges through trial). If you do, you certainly know that's unworkable without a lot more courts and money. If you don't, then the minute you accept that prosecutors, or any other person within the state structure, can settle a case, you've accepted that discretion has a place within the system.

Second -- and this may be a chicken-and-egg issue -- criminal statutes have proliferated in a way that makes all kinds of charges available for any given kind of conduct. In that way, the statutes allow for discretion, and almost require it. The "chicken/egg" issue is that this is often designed, I believe, to maximize the prosecutors' ability to leverage a plea.

Consider the death penalty example. How many "special circumstances" are there in California now? Several dozen? Virtually any murder can be tried as a capital crime. I don't think that is desirable, nor practical.

Finally, once you introduce the concept of judgment - i.e., when a prosecutor thinks he can get a conviction -- then you have introduced some form of discretion, no? These things are not always yes/no questions. How sure does a prosecutor need to be that she can get, say, a first-degree murder conviction, before she should decide to charge only second-degree murder or manslaughter?



Anyhoo. Discussing this stuff reminds me of how much I hated my Crim Law professor (who would have turned this discussion into a lecture about Hegel), and how complex it all is, especially when so much of our societal structure has developed around choices that are in many ways bad. Perhaps we should go back to topics where we all just bunker down in our zones of self-assuredness and lob curses at each other (and at Hank).

[Sidd Finch]

Originally Posted by Atticus Grinch

Who said anything about the police having unfettered discretion?

Yeah, I don’t like the BART Board either — they’re appointed by other politicians, but that’s because it’s a JPA, not for the purpose of insulating them from voters. The only people we intentionally protect from politics are federal judges, the Fed chairman, and schoolteachers. I do not favor expanding that list.

The BART Board is elected. Just sayin'.

[Atticus Grinch]

Originally Posted by Sidd Finch

The BART Board is elected. Just sayin'.

Oh, right. I’m not in their jurisdiction so I don’t get a say. Much like me and Bob McConnell.

[Greedy,Greedy,Greedy]

Originally Posted by Sidd Finch

The BART Board is elected. Just sayin'.

Cool. Which of you guys is going to run?

[ThurgreedMarshall]

Originally Posted by Atticus Grinch

We’ve been around this mulberry bush before, but I prefer it when local prosecutors bring charges when they believe they can get a conviction under the criminal statutes from a legally constituted jury, and don’t when they don’t. Asking the AG or U.S. Attorney to make that call instead is not an improvement. If you want police officers to be accountable for murder, you need a baseline amount of social capital — the same amount that would logically cause Bob McCullough to lose the next election in a landslide. If that doesn’t happen, then neither McCullough nor the grand jury were wrong in their judgments of what was given to them. I would not prefer that these judgments be upstreamed to whichever political actor is willing to vigorously pursue charges any more than I want my wars declared by a “Coalition of the Willing.”

I am highly confused by what you just posted. If a prosecutor does not believe that he can prosecute a man who has murdered a gay woman, because he knows for a fact that no jury in his community will ever find that man guilty, he shouldn't prosecute?

I used this hypo because it seems stupid to me to lay out a fact pattern about police who commit crimes since the news is littered with them.

TM

[taxwonk]

Originally Posted by ThurgreedMarshall

I am highly confused by what you just posted. If a prosecutor does not believe that he can prosecute a man who has murdered a gay woman, because he knows for a fact that no jury in his community will ever find that man guilty, he shouldn't prosecute?

I used this hypo because it seems stupid to me to lay out a fact pattern about police who commit crimes since the news is littered with them.

TM

Isn't that what a petition for a change of venue is for? I realize it's an extreme step, and one that often isn't worth the expense, but for the really egregious acts, it is an option, albeit one I don't know is effective.

[Sidd Finch]

Originally Posted by taxwonk

Isn't that what a petition for a change of venue is for? I realize it's an extreme step, and one that often isn't worth the expense, but for the really egregious acts, it is an option, albeit one I don't know is effective.

I'm pretty sure that a prosecutor cannot request a change of venue. The prosecutor chooses the venue in the first place, and doesn't have jurisdiction elsewhere.