Check out the caption of a criminal case sometime. All are similar. State v. So-And-So; forever and always the left side of the “v” denotes the state. Yet, in all the criminal cases I have handled, I have never met the state. Indeed, I never can and I never will. The state is, in the very best sense of the term, a legal fiction. It is a necessary fiction.
The state has the power to take away a person’s freedom. In some circumstances we permit it to kill. What distinguishes the state’s exercise of these powers from those of a street gang is the cloak of lawful authority. This cloak is defined by the rule of law, which we sometimes call a handmaiden of justice.
Somehow we have decided to treat the state as more than a fiction, however. We give it the rights of a party in criminal cases. And the state even gets its own lawyer and phalanx of investigators. We proceed by pitting an individual and his lawyer against a lawyer and … well, nothing. Think about it a moment. The state’s lawyer need no consult, no client, when acting. A prosecutor stands alone. What power.
The state’s lawyer acts, the cases say, as a minister of justice and as an advocate. But yet the state does not have the power to mete out summary justice. We reserve the role of passing judgment to judge and jury, and to the judge alone do we reserve the power to impose a sentence.
All this assumes certain facts that never really get examined. For example, how prosecutors use their discretion in charging a person. Because the state is a party, the state selects, in the name of justice, of course, the crime to charge. If that crime carries a mandatory minimum sentence, the state in effect ties the hands of a judge at the time of sentencing. We give to prosecutors the right to dictate the outcome in certain cases.
This troubles plenty of judges, though not enough dare speak their mind. Yet I can name a dozen judges who wince over mandatory minimums. These laws are passed by men and women who are strangers to the well of the court, where justice is done day in and day out. Sometimes in the dead of night, exhausted lawmakers pass a bill requiring prison. But these lawmakers know nothing of the men and women on whose necks the sentence falls. This is not the blindness of justice.
I am sure no one intended to make prosecutors the king of the courthouse by giving them unreviewable power. If judge and prosecutor both have a duty to serve the ends of justice, then why not give a judge the power to review charging decisions? What would be the harm? Indeed, wouldn’t that place the judicial branch on an equal footing with the lawmakers who define crimes and the executive branch prosecutors who enforce the law?
We need comprehensive criminal law reform in Connecticut. The judicial power resides in the judicial branch, not in the executive branch, and certainly not in the legislative branch. A trial judge should have the power to determine that the state has selected the wrong charges and to order substitution of more appropriate charges. A defense attorney should be able to claim that the state has overcharged a defendant.
The court could be required to give a reasonable basis for a decision to substitute charges, and that could be reviewable by the Appellate Courts.
Prosecutors will object. They will claim this undermines the will of lawmakers, who define crimes and consequences. But, in fact, it does no such thing. What this proposal does is remove from prosecutors the right to dictate outcomes based on unreviewable charging decisions. The sad truth today is that justice is often a matter of prosecutorial taste: some prosecutors charge bargain; others don’t. It makes no sense.
Next week, I will argue why sentencing guidelines could accomplish the ends of justice by empowering the judiciary to make reasoned sentencing decisions.
Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany.