Unless something miraculous happens tomorrow, Jefferson Beauregard Sessions III is poised to be our next attorney general. This will essentially make him the most powerful prosecutor in America, giving him the power to shape national priorities on civil and criminal justice.
Attorneys general of the past have been close reflections of the president's priorities. The Reagan and Clinton eras were marked by a sharp increase in federal drug sentencing. The Bush era was defined by Ashcroft and Gonzales, who supported expanded warrantless surveillance, championed the Patriot Act, and justified torture. Under Obama, the DOJ began investigating police departments, negotiated settlements with banks, and supported the expansion of executive power.
And now, there is Sessions.
Sessions is awful in pretty much every way possible. His views are draconian and cruel, he has a history of racist behavior that has been covered here plenty, and he doesn't care about the rights of pretty much anyone but Republicans, men, white people, rich people, straight people, and, of course, prosecutors.
That’s the other thing that makes Sessions particularly awful: his views on prosecutorial misconduct.
From a report in last week's Los Angeles Times:
In 1997, a state judge in Birmingham, Ala., dismissed charges brought against Tieco, an industrial equipment manufacturer, for cheating one of its corporate customers. In his order, the judge adopted the defense’s position that the Alabama attorney general’s office had committed “serious and wholesale prosecutorial misconduct” that was “so pronounced and persistent that it permeates the entire atmosphere for this prosecution.”
Moments after being publicly shamed, the attorney general in question gave an impromptu interview in the courthouse hallway. His central concern was not, as one might expect, his reputation, but what he saw as unfair disparagement of prosecutors.
“Charges like ‘prosecutorial misconduct’ offend me,” said Jeff Sessions, now a United States senator and President-elect Donald Trump’s choice for attorney general. Judges shouldn’t use such language, Sessions argued, because “if prosecutors are continued to be abused by defense lawyers, it can chill their willingness to take on high-profile, complex cases.”
This statement is outrageous and extremely disturbing—in part because it is so insidious. The average citizen reading that excerpt may not totally understand the extent of that lie. But prosecutorial misconduct is a serious problem, and the idea that prosecutors are being abused by defense lawyers is absurd.
Let's start with prosecutorial misconduct. Sessions is offended by the charge of prosecutorial misconduct and thinks judges shouldn't use such language. (He's pretty sensitive, that Jeff Sessions. Offended so easily. Where's his safe space?)
The question, then, is if we don't call it prosecutorial misconduct, what should we call it when:
- A prosecutor falsifies a defendant's confession, changing a written transcript to say that the defendant admitted to a crime until a recording proved he didn't?
- A prosecutor charges a disabled mother for stealing, despite clear video evidence that she was framed by a store employee?
- A prosecutor forces a mentally ill rape victim to sit in jail for a month, where she is abused and beaten, in order to force her to testify against her rapist?
- A prosecutor covers up law enforcement's destruction of 21,000 pieces of evidence for more than six months—while continuing to prosecute cases that depend on that evidence?
- A prosecutor knowingly receives illegally accessed recordings of conversations between inmates and their attorneys—a clear violation of the defendant's constitutional rights?
- A prosecutor's office takes hundreds of thousands—even millions—of dollars from money that, according to the state constitution, is clearly supposed to go to a fund for public schools?
- A prosecutor asks law enforcement to hide evidence and then knowingly lies to the court about a witness's drug dealing background?
- A prosecutor offers women more lenient sentences in exchange for sexual favors?
- A prosecutor hides video of a police officer shooting a kid 16 times in the back, and doesn't press charges against the officer until the video is made public?
- A prosecutor lies to defense counsel and to the judge about payments made to a jailhouse informant?
- A prosecutor protects the powerful, refusing to investigate the mayor’s nephew after he killed someone?
- A prosecutor lies to a jury, telling them that the 19-year-old defendant had never met the two middle-aged men he killed—even when she knows that those two men had raped the defendant repeatedly from the time he was 13 years old?
- A prosecutor charges a 17-year-old as an adult for possession of child porn, because he had naked pictures of himself on his phone—since he is technically, at 17, a minor?
This is just a small sampling of the stories of prosecutorial misconduct that we've covered during the past 18 months alone, and are just a tiny, tiny fraction of the stories that exist. Each of these stories is vastly more offensive than the term "prosecutorial misconduct."
And Sessions’ accusations that prosecutors are abused by defense attorneys are equally ridiculous. It's been pointed out here many times before, but it bears repeating—prosecutors have almost every single advantage in the courtroom. They decide what to charge, they request bail, they decide what plea deal to offer. They have their own investigative unit in law enforcement, they often control the trial calendar, they self-police evidence and discovery, they are subject to almost no accountability. They are rarely sanctioned for their misconduct. And they are overwhelmingly better funded, better resourced, better positioned, and better equipped than public defenders, who handle the cases of around 80 percent of defendants.
Not to mention that America incarcerates far more people than any other nation, a rise that has correlated over the last three decades with an increase in prosecutorial power. There is no evidence of prosecutors being discouraged from taking “high-profile, complex cases.” I’ve never met a prosecutor who didn’t like the attention of a high-profile trial, and 95 percent of cases end in a plea deal anyway.
There is no bigger inherent government power than prosecutorial power. All those checks and balances that theoretically impinge other powerful positions? In practice, prosecutors are inhibited by virtually none of those. Prosecutors have virtually no accountability, remarkable advantages in the courtroom, bad incentives, and can manipulate and terrorize regular citizens whenever they'd like.
Similarly, there is no clearer evidence of too-big government than mass incarceration. Even some Republicans are beginning to see that—but not, of course, Jeff Sessions, who believes in the War on Drugs and was one of the few to vote against the bipartisan criminal justice reform bill this year.
The lesson here? Jeff Sessions loves big government as long as he's in charge. In other words, we're in for a pretty terrifying ride.