Two suggestions, one radical, one modest, on prosecutorial reform

I ran across two additional, suggested approaches to reduce prosecutorial misconduct: First, here's an interesting idea for prosecutorial reform: Separate conflicting prosecutorial functions.

No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.

In  Missouri v. Frye the Court  took belated note of this fact, recognizing a right to counsel in plea bargaining in part  because “longer sentences exist on the books largely for bargaining purposes."

“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.

Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.

Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.

He can spend your money to avoid his trials.

The proposed "Swiftian" solution: To "divide American prosecutors into two separate and independent offices." The office responsible for trying cases would be dissociated from

an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

For my part, if we're considering such radical reform, I might suggest instead (or perhaps in addition to) following the lead of the British Crown Prosecution Service, where attorneys may serve as prosecutors one day and defense lawyers the next. To me, the problem is not the prosecutorial function so much as an entrenched prosecutorial culture and mindset that leads to tunnel vision and politicized justice.

Second, a reader saw a past Grits post suggesting prosecutorial misconduct reforms including requiring judges to name prosecutors in orders when there are Brady violations or other misconduct. This reader sensibly suggested pursuing a bill that would "Require the clerk - not the judges -to insert on all orders the names and State Bar Card Numbers of all prosecutors and defense lawyers." Our friend continued, "In civil cases, the lawyer who drafts an agreed motion and/or agreed order does this anyway, so it won't be a stranger to anyone in any county clerks' office or district clerks' office." Excellent point.