Prosecutorial Discretion Run Amok

Prosecutorial Discretion Run Amok
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Lee Carroll Brooker, a 76-year-old decorated and disabled combat war veteran was sentenced to die in prison for growing marijuana in his backyard. He grew the marijuana to alleviate pain from his physical disabilities. The judges who imposed and affirmed his sentence acknowledged that the sentence was excessive and unjustified, but claimed their hands were tied by the state's mandatory sentencing laws. Even though marijuana for medical use is now legal in 23 states and the District of Columbia, it is still a serious felony in Alabama, where Brooker was convicted, and given the fact that Brooker had several robbery convictions when he was a young man in Florida, the marijuana conviction subjected him as a prior felony offender to the mandatory sentence of life imprisonment without parole.

Commentary on Brooker's ordeal has focused exclusively on the shockingly harsh punishment for such a relatively minor non-violent offense. Brooker petitioned the U.S. Supreme Court to review his sentence, claiming it was so excessive as to violate the Eighth's Amendment's ban on the infliction of Cruel and Unusual Punishments. But the Supreme Court last week declined to review his sentence, not a big surprise given how rarely the Court reviews non-death penalty sentences. Decrying such an unconscionable sentence, its mandatory nature, and the dysfunctional legal system that would tolerate such excess and bar judges from modifying such inhumane treatment is altogether proper. But focusing on the system, the judges, and the punishment misses the real point.

Indeed, Brooker likely would be a free man today, and there would be no debate over the cruelty of his incarceration for life, had the District Attorney in the little town where Brooker resided merely exercised sound, civilized, and humane judgment. The District Attorney did not.

To be sure, a prosecutor's application of state criminal statutes to a defendant's conduct could produce a variety of criminal charges, and potential sentences. Rigid application of legal rules could produce the kind of outrageous charging and sentencing decision that the local prosecutor inflicted on Brooker. A more flexible, more civilized, less vicious approach by a prosecutor could have produced a much more sensible charge and sentence. The point, that the commentary overlooked, is that every key decision in the criminal justice system rests on the prosecutor's discretion and the way in which the prosecutor exercises that discretion.

The prosecutor's charging decision is the most formidable decision in the criminal process: it becomes the foundation for the potential deprivation of a defendant's liberty and sometimes his life. The prosecutor's exercise of discretion is not only the heart of the prosecutor's function; it is the foundation for the operation of the criminal justice process itself. Indeed, the prosecutor's charging decision involves the most enormous exercise of power of any government official, described by Supreme Court Justice Robert H. Jackson as "the most dangerous power of the prosecutor." Moreover, the prosecutor's charging power is virtually unreviewable by any court or other agency. And in a case such as Brooker's, where the recidivist charge carries a mandatory sentence of life without parole, the prosecutor can unilaterally decide to bring such a charge, and a court has no power to review or rectify that decision, however unjust it may be. And given the numerous factors that go into a prosecutor's exercise of discretion, it is virtually impossible to design professional standards to guide, and limit, a prosecutor's charging function.

Was the Alabama prosecutor legally mandated to charge Brooker with the most serious drug felony, and then ratchet it up by adding Brooker's prior felony convictions in order to charge him as a habitual offender subject to mandatory punishment of life without parole? Of course not. Consider some of the facts in the Brooker case. The police seized 34 marijuana plants which weighed 2.85 lbs in their entirety, including large unusable stalks, whose weight was above the threshold of 2.2 lbs for a Class A felony drug charge, the most serious drug charge. Combining the drug charge with Brooker's prior felonies allowed the prosecutor to invoke the mandatory life without parole sentence. But of course, the maximum amount of usable marijuana from the plants seized was a tiny fraction of the 2.85 lbs, and certainly well under the 2.2 lbs threshold. The prosecutor knew this. Did the prosecutor have to consider the highest weight, even though it was obviously an artificial weight? Of course not. Or given the artificial weight, could not the prosecutor have exercised discretion to charge a lower weight, and thereby bring a reduced drug charge not carrying a mandatory sentence? Of course. And since there was no evidence that Brooker was distributing the marijuana commercially - typically a reason for a prosecutor to bring higher drug charges - could the prosecutor in exercising discretion have sought to mitigate the harshness of bringing the highest drug charge by considering critical factors such as Brooker's use of the drug for personal health reasons, his distinguished military record, and the fact that Brooker's other felonies were committed over thirty years ago, when Brooker was a troubled alcoholic young man?

Brooker was convicted by a jury, which suggests that he may have refused to plead guilty. It may be that Brooker's refusal to plead guilty impelled the prosecutor to present to the jury the most serious drug charge as retaliation. Do prosecutors actually retaliate when a defendant refuses to plead guilty? Prosecutors routinely use their vast charging and sentencing powers to coerce defendants to plead guilty, with the most dire consequences if they refuse, "sentences so excessively severe they take your breath away," as one federal judge recently observed. The prosecutor's power to inflict ultra-harsh punishments, often for minor drug offenses, has been called a legal "sledgehammer," a "two-by-four to the forehead."

Responsibility for the problem of mass incarceration has been attributed to many causes, but I would suggest that one of the principal reasons why so many offenders - especially minor drug offenders - are in U.S prisons for such incredibly long terms is because of the prosecutor's arbitrary use of his charging and sentencing power.

In the end, the criminal justice system is corroded, its integrity is tainted, and too many minor offenders live and die in jail because prosecutors behave with such callous indifference to the cruel consequences of their actions.

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