Power Of The Prosecutor

This essay was commissioned by a friend, who shared with me an article from Huffington Post.  The article deals with the incredible power that prosecutors have in today's justice system.  This article does not address the situation in context to sex offenses, which correspond to the claims of the author perhaps even more glaringly than his own assertions.  The full article can be found at www.huffingtonpost.com/2013/01/16/the-power-of-the-prosecutor.

As I have mentioned in other essays, the prosecutors in the legal system have an inordinate amount of power and very few checks as to the abuse and manipulation of that power. The author, Radly Balko, addresses some of these and I'd like to illustrate how they fit into sex offense cases.

"There are too many laws... It is nearly impossible for layperson to keep track of all the laws that are created and modified in any given year."  The civil libertarian and defense Atty. Harvey Silvergate has argued that most Americans know unknowingly commit about three felonies per day." This is obviously a frightening statistic, and in the case of "sex crimes" they are added and modified continuously.

For example, ARS13-3553. the statute under which I was convicted, does not have any exceptions for exemptions built into it.  This means that my ex fiancée who viewed and transported the images in question to the police as well as the police, and the justice system personnel that exhibited these images, are guilty of the same crime than I am.  The power or willingness to enforce or prosecute this law seems to be an arbitrary decision based on the whims of law enforcement and justice system personnel.  I do not wish to imply that Jess, or the police should be charged, but the fact is that they could be and have violated the statute for which I am serving time.

Prosecutors are also protected by immunity that "shields them from liability, no matter how egregious their mistakes." How does this provide a truly objective system?  In Arizona at least, a judge will nearly always rely on the prosecution's case without any investigation to the claims.  Defense attorneys, especially public defenders, will not bother to investigate either, leaving the prosecutor free to embellish, manipulate, and even break the rules of the justice system.

As Balko states, "the prosecutor's job is no longer about enforcing the laws, but about choosing which laws to enforce."

"The laws are vaguely and broadly written."  This is evidenced by the previous scenario regarding ARS13-3553.  Also, the law includes: recording, filming, photographing, duplicating, developing, distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing, or exchanging in any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." In other words viewing an image is viewed with the same severity as actually taking pictures with intent to distribute.  The question of intent is completely absent from the equation.

In fact, in Arizona, a conviction for child molestation only requires proof of "knowingly and intentionally touching the genitals [of a child]." This may appear straightforward, but the state need not prove sexual intent or motivation.  Yet without sexual intent, the innocent actions perform daily by doctors, parents, child care workers, and others become repugnant actions of the predator needing to be punished.  Is not the annual "hernia check" performed in our school days the "intentional touching of the genitals"?  Dr. and gynecological visits, parental medical administrations, and a number of other acts are not exempt by this definition.  I know of at least one inmate serving a life sentence for an innocent actions such as this.  A life sentence with no need to question whether this contact was sexually motivated.

It is also well known that by and large, for prosecutors the justice system is a numbers game.  Elections, promotions, and appointments are based on racking up high numbers of conditions.  There is really no praise or incentive for declining to prosecute in the interests of justice.  I'm sure there are prosecutors, and defense lawyers who are guided by ethical standards, but politics often takes a greater role in the system.

Plea bargains, which were intended to reduce the burdens placed on the horrendously overstretched court system, are seen by some as a tool that lets guilty people off with lighter punishment than they deserve.  In reality however, they are being used as a tool of manipulation by the prosecution.  Multiple charges are often stacked, creating a terrifying prospect to defendants to take a plea.  In my situation I was looking at 100 - 300 years if I'd been found guilty on all charges, for possessing pictures that I had downloaded unseen, many of which had long been deleted.  I'm not defending my acts, but life in prison for this seems kind of extreme.  So I took a plea, not realizing the degree to which I was forfeiting my rights of due process in terms of seeking post conviction relief.  This type of scenario is by far the norm of this yard.  I know of several inmates who claim to be innocent, that took a plea of guilt because the implications of a wrongful conviction were too staggering to comprehend.

The Post article refers to "bringing the hammer down" as a method of intimidation and a showing of brute force.  I, thankfully, was spared the humiliation of SWAT teams busting into my home "guns a-blazin' " but many of my fellow inmates were not.  Most of these "dangerous felons" are rather meek and "nerdy" computer geeks - who might have relied on computer "fantasy" to compensate for an insecurity in human relations.  Yet teams of gun toting law enforcers would burst into their homes and drag them out and cuffs.  I mean, really?  Is this truly necessary or productive in any way to them, the families, or even to taxpayer dollars?  It's a display of might.

We also saw how post 9/11 a whole host of laws were enacted to protect ourselves from the tyranny of terrorism.  Yet again many of these laws could be used to limit our own rights to free speech and are vague and controversial.  Computer monitoring has resulted in a huge spike in convictions of internet-related sex crimes.  Again, not to condone these activities, but is that the intention of these restrictions to privacy?

The notion that "criminality is influenced by politics" is at its most evident in the sensationalism of prosecuting sex crimes.  How often is "tonight's top story" about illegal porn,  allegations of inappropriate behavior, or some kind of sex scandal?  It's a great strategy to rally and stir up the population at large, but the long-term effects on individuals, their families, and society as a whole is both underplayed an overlooked.  Very few of the monstrous and villainous sex offenders with whom I am incarcerated are truly a danger to society at large, and I imagine the same is true in the general population as well, but the prosecutors of this nation are not interested in such triviality.