JUDGE, JURY, AND SOMETIMES GOD

...No one, of course, wanted to pack her off to jail...

...A conviction means a warm bed and hot food for a few days to ward off the winter cold...

...And, like most officials, prosecutors will not gladly loosen their grip on things...

...Why, then, all the debate...

...We can't very well have every decision of every United States Attorney and all his assistants scrutinized by a Congressional committee," says Edward Korman...

...State and local prosecutors have even more autonomy...

...Nor are the racist prosecutors found only in the South...

...Although legal scholars squabble about the efficacy of controls in these countries, one thing is clear: Checking prosecutorial power is more than the smoky fantasy of some campus naif...

...The court approvingly quoted a 1965 case: "The courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions...

...Prosecutors themselves predictably disagree: "There's no better system I can see than the present one," says John Martin...

...The discretion has to rest somewhere...

...At the height of the movement in 1965, eight civil rights workers appealed to a Federal court to force prosecution of Mississippi officials who, the activists claimed, had beaten and intimidated them...

...If the prosecutor concentrates on blue-collar crimes and leaves the white-collar criminals alone, there is hardly any way to make sure the law will be enforced more evenhand-edly...

...The results," Voren-berg continues, "are disheartening for one who believes that the legislature and the public should have sufficient information to improve the way government works...

...Typically, there is no way of testing the effects of reversing the practice, or of determining whether this approach reflects the public's wishes...

...By dismissing the IBM case and settling the AT&T suit, by harshly punishing the air controllers while forgiving bribery by the McDonnell Douglas Corporation, the Department is clumsily teaching us the lesson that, in this country at least, the enforcement of the law is as political an act as is the passage of any routine porkbarrel bill...

...Why should a prosecutor," asks Professor Davis in his Discretionary Justice, "have a complete power to decide that one statute duly enacted by the people's representatives shall not be enforced at all, that another statute will be fully enforced, and that a third will be enforced only if, as, and when he thinks it should be enforced in a particular case...

...But it was opposition to the war in Vietnam and the prosecutions issuing from it that best show how selective the power to prosecute can be...

...power to decide which cases to prosecute, what charges to bring, when to plea-bargain, what sentence to recommend to the court...

...Although constrained by a need to get along with the police, the courts, the press, and the public, the American prosecutor occupies the "black hole" of the criminal justice system, in the words of University of Chicago law professor Franklin Zimring...

...Critics agree...

...Whipped into something of a frenzy over violent crime, the Massachusetts legislature prescribed a mandatory year in jail for anyone caught with an unlicensed gun...

...Are these policy differences inherently wicked...

...How did all this power collect in one official...

...If you are the victim of an assault, there is almost nothing you can do to force the district attorney to bring your attacker to trial...

...In Sweden and Finland, prosecutors must try all cases of certain categories of crime for which they have sufficient evidence...

...Although dramatic events such as the new, hands-off antitrust policy and the civil war over civil rights enforcement within the Justice Department play a part in the angry new awareness, the concern is not centered solely in the nation's capital...

...In explaining to Miller his disposition of a case involving "gambling equipment and an indecent floor show" in the clubhouse of a fraternal organization, an anonymous assistant prosecutor who declined a felony prosecution said that "because of the caliber of the men involved, the complaint should be for a misdemeanor...

...Lezak] chooses to pick on the powerless and the unpopular, the blacks, the Indians, anything that makes him look great," Michael Bailey, assistant director of the Portland Public Defender's Office, told the American Lawyer recently...

...Many prosecutors claim it would be pointless to try to control discretion in law enforcement...

...I have sixty lawyers to prosecute criminal cases in a district of seven and a half million people," says Edward Korman, United States Attorney for the Eastern District of New York...

...Most decisions rest on sensible grounds...

...reform must come from outside the system if it is to come at all...

...Race, wealth, social prominence, political clout: None of these should dictate the decision not to charge a suspect with a crime, but it is unsurprising that they often do...

...But they have the power to be unreasonable, and even downright discriminatory, if they wish, and it is that possibility which leads many legal scholars to protest the unbridled discretion of America's public attorneys...

...The case that prompted this statement concerned cohabitation with a twenty-year-old girl...

...Predictably, one of the first persons charged under the law was, as James Vorenberg tells the story, "an elderly woman who had been sitting on a corner, passing out religious leaflets from a paper bag containing not only her lunch but a pistol she believed she needed for protection...

...The decisions of a trial judge can be appealed to a higher court...

...Loaded with liquor, British passenger ships of the Cunard Line were cruising into New York Harbor, picking up thirsty American vacationers and, once outside territorial waters, serving them drinks...

...True to their reading of the law, however, many prosecutors refuse to try cases where the male and female are close in age...

...Because our criminal codes are full of what one judge called "cow-catcher phrases and blunderbuss statutes," Dean Vorenberg believes we should tighten up the language and scope of those laws...

...Douglas was prophetic: Three years later, Vice President Spiro Agnew was permitted to plead no-contest to a handful of serious charges, while some South Dakota Indians were tried for the hefty crime of theft of beadwork from a reservation...

...Politics may also save an offender...

...The numbers tell the story: Only a dozen such suits have succeeded in two hundred years...

...A 1978 report by the General Accounting Office noted the great differences in enforcement policies among the ninety-four United States Attorney districts: "in one district the United States Attorney has decided that bank embezzlements of $500 or less generally will not be Federally prosecuted...

...In a 1970 Supreme Court opinion, the late Justice William O. Douglas stressed the different prosecutorial treatment of politically popular and politically unpopular defendants: "While former government officials resign rather than face trial, American Indians are placed under Federal indictment for stealing a bag of groceries during the government siege of Wounded Knee...

...If the district attorney prosecutes you—and no one else—for playing penny-ante poker, or for setting up house with your lover, or for attempting suicide, there is no higher authority, as a rule, to which you can turn for redress or satisfaction...

...Each case, they say, turns on its peculiar facts, and no guidelines can anticipate such daunting variety...

...A prosecutor sits on a very hot seat and his policies, whatever they may be, will offend someone...

...Some believe an independent prosecutorial service, free from party politics, is the answer, while others in search of a solution say the courts should shed their meekness when it comes to prosecutorial abuse...

...Most would be expensive and time-consuming, and some would mean onerous new burdens for an already overwhelmed criminal justice system...

...Critics of the present system do not want for suggestions...

...Wherever there is power, they admit, there will be abuse...

...Although city law enforcement officials said it proved to be more efficient to charge only the prostitutes and not their many customers, one...

...The American shipowners sued, asking a Federal court to compel the United States Attorney in Manhattan to investigate and prosecute the British shipowners...

...Such criticisms are to be expected...

...All this seems reasonable enough...

...For example, the pending retirement of Sidney Lezak, the United States Attorney for Oregon since 1961, has led his critics to speak out...

...Statutory rape—legally defined as consensual sexual intercourse with an underaged female—is a good example...

...are arrested and convicted by the hundreds, while perpetrators of innumerable church bombings and burnings, kidnappings, beatings, maimings and murders of Negroes and civil rights workers are not prosecuted...

...Frank W. Miller, the author of a study of prosecutors published by the American Bar Foundation, described how Detroit prosecutors decided whether or not to bring charges in morals cases: "One assistant prosecutor in Detroit expressed the belief that the moral code among the Negro subgroup was so low that if all such offenses were prosecuted the courts would be overloaded...

...Personal vindictiveness, political dislike, racial enmity, a resistance to the exercise of constitutional rights—all are disturbing, and disturbingly common, motives for prosecution...

...In another district, the United States Attorney has decided that bank embezzlements under $5,000 will not be prosecuted when the suspect is not a bank supervisor or an officer...

...The defendant's record, the attitude of the victim, the likelihood— however strong the evidence—that a jury will acquit, and stray considerations such as the availability of prison space may shape a prosecutor's decision...

...Many prostitution laws criminalize the behavior of both prostitutes and their customers...

...We decline to prosecute cases for a variety of reasons," says John Martin Jr., the United States Attorney for the Southern District of New York, with 111 lawyers the largest Federal office in the country...

...Hundreds of antiwar demonstrators were hauled into court and jailed, yet despite all the evidence of f raggings and massacres in Vietnam, only one such case—My Lai— was ever brought to trial Defenders of prosecutorial discretion are forthcoming...

...And, prosecutors argue, they are not the modern equivalent of an omnipotent Venetian Doge...

...Laws passed by legislators must be signed by the President, a governor, a mayor...

...In New York City in 1964, a new trial was ordered for a woman accused of housing violations when it seemed that her prosecution was in revenge for her exposure of corruption in the Department of Buildings...

...But leniency toward favored suspects is only half the problem, the critics say...

...They claim, however, that the prosecutor's discretionary power should be more tightly structured and subject to review...

...During the most volatile years of the civil rights movement, Southern prosecutors often refused to pursue whites who beat up and terrorized blacks...

...in organized crime or conspiracy cases, prosecution of petty criminals is often ruled out if they agree to become informers or otherwise cooperate with the government...

...So, with the prosecutor stripped of his traditional discretion, it fell to the trial judge to find a technical ground to avoid such a result...

...It is a perverse thought, but the best hope for reform just may be the Department of Justice as currently constituted...

...The power to enforce, Davis and others point out, is not the power to legislate...

...Far more damaging, at least to those at the wrong end of an indictment, is aggressive prosecution of unpopular persons...

...American prosecutors are the institutional offspring of the English Attorney General, who traditionally enjoyed some discretion...

...The practice was an arguable violation of the Volstead Act...

...His reportage and commentary have appeared in Harper's, Commonweal, the Hudson Review, and other publications...

...Prosecutors like to tell of a recent Massachusetts case...

...Many prosecutors (and non-lawyers) believe the point of the law is to punish exploitation of young girls by adult men...

...Several inmates filed fairly persuasive claims that, either before, during, or after the riots, they were subjected to "cruel and inhuman treatment," that state officers "assaulted and beat prisoners" and "intentionally killed some of the inmate victims without provocation," and that "medical assistance was maliciously denied to over 400 inmates...

...Prosecutions may even be brought out of sympathy for the offender...

...Ten years ago the police in Washington, D.C., using policewomen posing as hookers, began a drive to arrest Johns...

...conversely, civil rights workers were frequently prosecuted on the flimsiest of pretexts...

...Hundreds were convicted and jailed...

...And, because law enforcement priorities are a matter of public debate, there is input and influence from the public and the press as well...

...A prosecutor," Vorenberg wrote in the Harvard Law Review, "may have an unannounced practice of holding in abeyance charges for most first-offenderJarceny cases against youthful offenders, while being very tough on sales of even small amounts of drugs...

...we have understandably become used to it...

...Wide-open prosecutorial power is a venerable American tradition, older than our independence...

...I never even thought about alternatives," says one lawyer who frequently works with prosecutors...

...there is no discretion within these categories...

...It was 1973, two years after the Attica prison revolt...

...Neither courts nor legislatures nor the prosecutors' superiors regularly supervise these decisions...

...But, quite rightly, the critics brush away these objections, for the unassailable fact is that many nations sucessfully rein in their prosecutors...

...History is rich enough with abuses to justify such curbs, the critics say...

...Although a defendant can bring a suit for "malicious prosecution," that remedy is only of theoretical comfort because of the courts' historic deference to prosecutors...

...Washington judge had a different view: "They were getting complaints about locking up the good fellows from the suburbs...

...As it happens, though, there simply is no such control...

...What is to be done...

...One of the most intriguing proposals is that we create a system of "private prosecution" that would allow victims of crimes not prosecuted to prosecute their cases themselves...

...Prosecutors could not reduce the charge...

...Because many of these state and Federal laws are vague, the prosecutor also has the power, in many instances, to define their scope...

...If prosecutors sometimes abuse their power, as everyone seems to admit, and if other nations have shown that prosecutors can be controlled, as everyone else seems to admit, then why don't we Americans take the obvious course...

...Wealth and social standing can affect the decision to charge...

...Prosecutors seem merely to be harried administrators trying to get the maximum bang from their limited budgets...

...But critics like Professor Davis advocate reform not only to corral the admittedly exceptional errant prosecutor...

...The sex of suspects, as well as their "caliber," also sways prosecutors...

...In some cases we don't believe we have a strong enough case to get a conviction, and devoting our resources would just be a waste of time...

...Prosecutions during the Vietnam war show how selective the power can be...

...Sometimes, prosecutors enforce laws purely in line with their own sense of what the law means...

...The assistant indicated that the charging decision would have been different if white persons had been involved...

...Prosecutors stress, as well, the practical limits to safeguards against abuse...

...But critics stress not only that prosecutors are making what should be legislative judgments, but also that raw political ambition may dictate those judgments...

...A venerable winter rite in all northern cities is the migration of vagrants into police headquarters, where they beg to be charged with drunk and disorderly conduct...

...But the most enduring source of prosecutorial freedom of action is the disparity between actual prosecutorial budgets and the funds needed for full enforcement of the laws...

...Both the Department of Justice and its state counterparts preside over peculiarly balkanized prosecutorial systems which effectively give Federal and state prosecutors carte blanche to enshrine their own versions of the public interest...

...British law allows victims privately to prosecute a wide assortment of crimes...

...When the prisoners asked a Federal court to compel the Federal prosecutor to press for indictments, they fared no better than the wealthy shipowners of the Prohibition Era...

...You or I can be driving down the highway at seventy miles an hour and someone has to decide whether to prosecute...

...These international examples prove, the critics say, that their reforms can work...

...The answers, once more, seem rooted not in logic but in custom and politics...

...The owners of several American shipping fleets were shivering their timbers with rage...

...James Vorenberg, dean of Harvard Law School and a longtime critic of indiscriminate prosecutorial power, recently asserted in the Harvard Law Review that such broad discretion "is both inconsistent with the fair and effective administration of justice and unnecessary to serve the purposes offered to justify it...

...This power to pick and choose has raised hackles all across the country in the past few months...

...Lawyers all over the continent of Europe," claims Kenneth Culp Davis, "know that a prosecuting system can be viable without uncontrolled discretion...

...The answers are historical, logistical, and legislative...

...And yet, despite strong evidence that "fraggings" and massacres of civilians were commonplace crimes in the American ranks in Vietnam, only one case—the My Lai massacre—was ever brought to trial...

...Prosecutors, they emphasize, are attorneys whose first responsibility is not to decide which laws to enforce but to enforce all laws "without fear or favor," as the United States Attorneys' oath of office requires...

...Scores of draft resisters and antiwar demonstrators were hauled into court, often on attenuated grounds, such as "conspiracy to cross state lines to commit a Federal crime...

...Whether or not a suspect is prosecuted may depend more on the district handling the complaint than the quality of the case...

...Although they are informal, there are controls and constraints on the prosecutor," says Korman...

...it also had devastating effects on the profits of the American cruise-ship trade...

...For James Vorenberg, untrammeled prosecutorial discretion also impedes rational planning in the criminal justice system...

...There are drawbacks to all these proposals...

...Other times, psychiatric treatment seems more in order for the defendant than a criminal trial...

...Neither compendious penal codes nor vague laws preclude control of the prosecutor by other authorities—theoretically...

...or the pardon of crimes and misdemeanors...

...With no hesitation, the court refused: "[This court] has no jurisdiction over the prosecution...

...This case—now a common parable for prosecutors—is said to teach two lessons: that discretion can be shifted around but not eliminated, and that controlling discretion through tighter and tougher criminal laws is just some law professor's pipe dream...

...Although no two continental systems of prosecuting are the same, all stand in contrast with the Anglo-American system in the fundamental attitude about the discretionary power of prosecutors...

...Seldom, however, are "Johns" prosecuted under these laws...

...But I agree that an investigation as to the adequacy, or the execution, of these laws is not a matter within the jurisdiction of the judicial branch of this Government...

...Israel and Japan have elaborate systems guaranteeing crime victims the right to appeal a prosecutor's refusal to try a case...

...Prosecutors may also pass up cases where the money or contraband involved is small...

...Burgeoning criminal codes have played a role in the growth of prosecutorial power, too: America has so many criminal laws that, as Attorney General Robert H. Jackson once observed, "A prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost everyone...

...Consider the case of Simon Leis, the conservative Cincinnati prosecutor, whose sensational obscenity prosecutions were reported in the January and March issues of The Progressive...

...nevertheless, intercourse between an eighteen-year-old male and a seventeen-year-old female is technically a statutory rape in many states...

...Laws passed by a legislature and signed by an executive are subject to court review for constitutional defects, as are the decisions of most government administrators...

...In Discretionary Justice, Kenneth Culp Davis favors enforceable guidelines: "Even if we assume that a prosecutor has to have a power of selective enforcement, why do we not require him to state publicly his general policies and require him to follow those policies in individual cases in order to protect evenhanded justice...

...Douglas Noll, an assistant prosecutor in New York's Nassau County District Attorney's Office, thinks prosecutors ought to be required to justify to a magistrate their decisions not to prosecute crimes...

...Many prosecutors have no policies, but simply make decisions on an ad hoc basis...

...The power to be lenient," Professor Davis has written, "is the power to discriminate...

...In Hawaii in 1970, William Steele, one of many people who has refused to fill out census forms, was singled out for prosecution solely because, as a vocal member of a census-resistance movement, he was exercising his First Amendment right to be heard on public issues...

...With thousands of potential prosecutions and only a handful of attorneys, the typical American prosecutor must, willy-nilly, decide which crimes or categories of crimes to go after...

...But the critics say this discretion, whether or not benevolently exercised, is undemocratic...

...Skelly Wright, then as now one of the most liberal Federal judges, sympathized but sadly observed that his hands were tied: "It seems more than passing strange, to me at least, that in some parts of this country citizens exercising their First Amendment rights...

...Edward Korman adds that such differences may be traced to varying problems across the country: "In southern California or southern Texas, immigration may be the problem, while in New York the problem may be narcotics or official corruption...

...Many state and local prosecutors run for their offices, and the temptation to go for the sensational case and the six-column headline is often irresistible...

...Broader court review might only substitute a judge's opinion for the more expert one of the prosecutor...

...American prosecutors, whether Federal, state, or local, have the Francis J. Flaherty is a 1981 graduate of Harvard Law School and a former executive editor of the Harvard Civil Rights-Civil Liberties Law Review...

...And so it has been for more than two hundred years...

...How does a prosecutor make these hard choices...

...However labeled, the prosecutor is an American anomaly...

...Others suggest that these victims be permitted to contest before a judge a district attorney's decision not to prosecute...

...In all but the most exceptional cases, observes Harvard's James Vorenberg, "the exercise of prosecutorial discretion has routinely been upheld by the courts...

...That's not a big enough office even were I to devote myself solely to prosecuting bank robberies...

...More than 99 per cent of decisions by United States Attorneys are in fact unreviewed by anyone in the Justice Department," claims Kenneth Culp Davis, professor of law at Stanford University...

...They know what we're doing, and they also have control over our budgets...

...There is, for one thing, some Congressional oversight of [Federal] prosecutors...

...The program was quickly abandoned...

...The present system, he and others claim, is arbitrary and undemocratic...

...Private prosecution could open a Pandora's box of malicious suits by citizens with grudges against others...

...The acts of most other public officials are subject to review by someone else...

...In the years since the first American prosecutor took office in Connecticut in 1704, the power to charge has been misused in a chilling variety of ways...

...No, says Michael Smith, director of the Vera Institute of Justice: " 'Consistency is the hobgoblin of little minds.' What's wrong with different priorities in different districts...

...In other cases, the local interest seems stronger than the Federal interest, and so we let the local prosecutors handle it...

...In all but the most exceptional cases, however, no such checks restrain the prosecutor...