I'm thinking of Carter fulfilling a campaign pledge to pardon draft dodgers. Whether you support that or not, he did what he said he was going to do and I'm sure only some of them had actually been charged in any way. I think that's a perfectly fine use for the pardon power.
Some will point to the Hunter Biden pardon. So two things can be true at once here: it was absolutely political prosecution AND Joe Biden was completely selfish with his action. At least do something for the people by, say, pardoning a whole bunch of low level drug offenders and decriminalize cannabis at the Federal level. But no, it was completely self-serving but his brain was pretty much gone by this point.
Here's the problem: Federal prosecutors have a ton of power. Conviction rates are 98-99%. But it goes beyond that. Federal prosecutors will intentionally bankrupt you to force you to take a plea. They might charge you with 15 felonies, 12 of which are basically bogus. You still have to defend those bogus felonies and that costs you money. And as soon as you run out of money, they'll offer you a plea where you're looking at 25 years on the 3 remaining felonies or you can just take 10.
The power imbalance is insane and the wealthy are essentially immune. If a US attorney decides to make an example of you, you're going to have a bad time, regardless of the facts.
Millions were spent dredging up some crimes for Hunter Biden and pretty much all they could come up with was doing crack and filling out a form incorrectly. Do you think anyone else would get that level of attention?
A very recent example of this is the Karen Read trial or, as I call it, the most expensive DUI prosecution in history. If you didn't follow the case, don't worry, there'll be any number of true crime documentaries. Millions were spent prosecuting Karen Read for killing JOhn O'Keefe with a completely ridiculous theory of the case and all sorts of evidence that went missing (including police officers disposing of their cell phones on a military base the day before an electronics preservation order was issued).
I don't know what we do about this power imbalance and selective prosecution.
> Federal prosecutors have a ton of power. Conviction rates are 98-99%.
This always gets thrown around, but the fact is they should be that high. Prosecutors shouldn't bring cases unless they have evidence of guilt beyond a reasonable doubt, and DOJ prosectors don't (normally) screw around.
When you see lower rates of conviction, as in the current ethically bankrupt administration, it's often malicious prosecution, aka "You'll beat the rap, but you won't beat the ride."
No, the original poster is 100% correct and if anything understating the issue.
US Attorneys are enormously powerful and because federal law is so vague in many ways, attracting their attention is a kiss of death. Most of federal defense work is highly technical and more about managing pleas and the mandatory sentencing guidelines. They agree to punishment and shape the plea deal to some crime that hits the number.
This weird technical approach to “justice” results in bad outcomes in other ways. The famously self-promoting Preet Bharara ended up letting a bunch of people free who quite obviously were taking bribes and fixing bids go free by abusing the “Honest Services” laws, which were subsequently thrown out on appeal.
The current administration is different - their weaponization of the system means that they literally can’t appoint qualified attorneys, who fear disbarment for what they will be directed to do. AUSAs have quit en masse and they are forced to hire toadies from 3rd tier law schools like Liberty University and make weird interim appointments. It’s a great time to be a criminal.
I would be fine if high conviction rates reflected prosecutor's only bringing good cases. It doesn't. It reflects the odds being stacked against you and it being so expensive and high risk to defend yourself.
This high cost and power imbalance is used to force people into plea deals for crimes they didn't commit.
Let me give you an example: 924C enhancements [1]. This is where certain drug or violent crimes being committed with a firearm can add years or even decades to a sentence automatically.
Let's just say you live in a concealed carry state and you have a weapon on you. You're walking home and the police pick you up. You match the description of one of two people who were smoking drugs in an alley as per a 911 call. The other person was already picked up by police. He was unarmed. His story was that you sold him the drugs. He also claims you brandished a pistol.
Was there a drug transaction? Or was this simply two people smoking together? The other person had a small quantity of drugs on him when apprehended.
A 911 call mentioned seeing a weapon drawn. It was dark. You can go through versions of this scenario where you were the other person or it was a case of mistaken identity. Eitehr is bad for you.
What if the other person sold you the drugs and made up this story to avoid a distribution charge? What if as a teenager you had a minor possession charge? What if prosecutors believe the other person and make a deal for a reduced sentence in exchange for testimony?
You have a gun and now 2 witnesses who say you "brandished" the gun. So whatever charge you end up with the "brandishing a firearm" part (under 924(c)) adds 7 years to your sentence to be served consecutively. And they've stopped you with a firearm.
So what was a "he said, she said" situation has now turned into a situation where you could be facing 10 years in jail and defending against that could well cost you $200,000+, which you don't have. Or you can take this plea for 2 years in jail. What do you do?
> I would be fine if high conviction rates reflected prosecutor's only bringing good cases. It doesn't.
There is a huge amount of hand-waving following this assertion without any evidence to back up the claim.
I'm not saying abuse of process doesn't happen, but this is just saying it can and then spelling out a big hypothetical without any proof that this practice is rampant.
It's hard to find quantative data but one clear example is DNA-based exoneration by the Innocence Project [1]
> Among the many insights drawn from these
wrongful convictions is the realization that a guilty plea is
not an uncommon outcome for innocent people who have
been charged with a crime: 11 percent of the DNA exonerees recorded by the Innocence Project pleaded guilty
There's a thing called the Trial Penalty [2]. ~98% of charges result in a guilty plea. If all 100% went to trial the system would collapse. As such, prosecutors coerce plea deals [3]. But the Trial Penalty works pretty much like the example described: if you go to trial, you will be overcharged and face, say, 10-30+ years in jail. Or you can take a plea for 2 years.
This Trial Penalty is made worse with mandatory minimums and add-on charges like I mentioned (ie 924(c)).
This effect has been modeled with maths and game theory to show hoow extreme outcomes cause people to plead guilty more often [4].
This is a well-known problem in criminal justice. You're showing either a complete lack of imagination or simply don't think this will ever be used against you.
> There's a thing called the Trial Penalty [2]. ~98% of charges result in a guilty plea.
The gist of this argument is that there are huge numbers of innocent people railroaded into prison, but in the bigger picture crime is wildly under-punished.
More than half of murderers go free.
More than 98% of rapists never spend a day in prison.
At the end of the day this is all a question of where you stand on Blackstone’s Ratio. In the US, even with the rate of wrongful conviction we may have, we stand solidly opposed to zealous pursuit of justice for the victims of crimes, on the argument that an innocent person might be punished.
> ... but in the bigger picture crime is wildly under-punished.
Um, citation needed.
> More than half of murderers go free.
The burden is on the state to prove their case not on the accused to prove their innocence. If this completely unsubstantiated statistic is true (again, citation needed) why is the state so bad at making their cases?
> More than 98% of rapists never spend a day in prison.
Yes, rape is under-reported, under-charged and rarely results in a conviction. This is true. Society engages in a whole lot of victim blaming with sex crimes.
> we stand solidly opposed to zealous pursuit of justice for the victims of crimes
What? The US has 4% of the world's population but 25% of the world's prisoners. If over-policing and wildly capricious sentences (eg 10+ years for cannabis possession) worked, this would be the safest country on earth.
> At least do something for the people by, say, pardoning a whole bunch of low level drug offenders and decriminalize cannabis at the Federal level
In 2022 he pardoned ~6500 people with federal convictions for simple possession of marijuana. That didn't actually release anyone from jail because it turned out everyone in jail with a simple possession conviction was also in there for other crimes but for those for whom it was their only drug offense (both currently in prison or not) it wiped it off their record which would restore eligibility for various things that drug offenders are barred from.
Near the end of his term he commuted the sentences of around 2500 non-violent drug offenders.
I'm thinking of Carter fulfilling a campaign pledge to pardon draft dodgers. Whether you support that or not, he did what he said he was going to do and I'm sure only some of them had actually been charged in any way. I think that's a perfectly fine use for the pardon power.
Some will point to the Hunter Biden pardon. So two things can be true at once here: it was absolutely political prosecution AND Joe Biden was completely selfish with his action. At least do something for the people by, say, pardoning a whole bunch of low level drug offenders and decriminalize cannabis at the Federal level. But no, it was completely self-serving but his brain was pretty much gone by this point.
Here's the problem: Federal prosecutors have a ton of power. Conviction rates are 98-99%. But it goes beyond that. Federal prosecutors will intentionally bankrupt you to force you to take a plea. They might charge you with 15 felonies, 12 of which are basically bogus. You still have to defend those bogus felonies and that costs you money. And as soon as you run out of money, they'll offer you a plea where you're looking at 25 years on the 3 remaining felonies or you can just take 10.
The power imbalance is insane and the wealthy are essentially immune. If a US attorney decides to make an example of you, you're going to have a bad time, regardless of the facts.
Millions were spent dredging up some crimes for Hunter Biden and pretty much all they could come up with was doing crack and filling out a form incorrectly. Do you think anyone else would get that level of attention?
A very recent example of this is the Karen Read trial or, as I call it, the most expensive DUI prosecution in history. If you didn't follow the case, don't worry, there'll be any number of true crime documentaries. Millions were spent prosecuting Karen Read for killing JOhn O'Keefe with a completely ridiculous theory of the case and all sorts of evidence that went missing (including police officers disposing of their cell phones on a military base the day before an electronics preservation order was issued).
I don't know what we do about this power imbalance and selective prosecution.