It is often said that our criminal justice system may not be perfect, but it is the best the world has to offer. The boast presupposes that our system affords individuals true due process and embraces the ideals of fairness, humanity and righteousness.

Speaking from the front lines, I can attest to the fact that the American system of criminal justice is fundamentally flawed. Our system continues to create a vast underclass of individuals who are unemployable, hopeless and alienated from society. Moreover, although we claim to be a nation of laws and not of men, the fate of many is in the hands of a few individuals who do not exercise their power with the wisdom and humanity befitting their station. Most troubling is the complacency and tolerance demonstrated by those who are the cogs in the wheel of what is the system. Compassion and the “big picture” are lost. Outrage over the abuse of authority is nonexistent.

There is a distressing tolerance on the part of the bench and defense bar when it comes to suffering the small minority of prosecutors in this state who are bullies and prosecute according to their own extreme ideology and zealotry. We in the criminal system – fellow prosecutors and defense attorneys alike — know who they are. Although, this state is blessed with a vast majority of prosecutors who conduct themselves with integrity, fairness and common sense, there exists a small handful who operate out of step with what is considered reasonable and just. They are those who treat criminal defendants and their attorneys with disdain and contempt.

Although outliers, they are allowed to wield their power often unimpeded and to abuse their discretion with little regard to the staggering consequences their decisions have on individuals, family members and society as a whole.

For instance, some of these prosecutors having forgotten their oath to do justice, will silently tolerate police abuses—some have even expressed their feeling that such abuses are sometimes necessary to get the “bad guys.” Additionally, some believe that it is their job to shield law enforcement from their own excesses and illegalities — even so far as protecting them from potential civil redress by wronged defendants.

Moreover, it is commonplace for some to fail to skeptically scrutinize police reports, instead regarding them as sacrosanct even when it is apparent that some law enforcement officers are routinely engaged in clear civil rights violations—using pretextual reasons to stop, search and sometimes arrest those they deem “suspicious.” There are those who know of the bad apples in police departments, yet turn their heads. Some police misconduct has been tolerated for years, even when those of us in the system knew exactly who the bad apples were. Finally, too often these prosecutors are remiss, at best, in determining what constitutes “Brady” material and will engage is ends-justifies-the-means trial strategy.

These are individuals who do not exercise their discretion and power with common sense and a view to the big picture. They rationalize wrong-headed decisions by claiming they are merely enforcing the laws when in reality they are bestowed with immense discretion and expected to use it wisely. They insist on felony convictions when such are clearly not warranted — a stigma staining an individual’s life forever — and have a short-sighted view of the long range consequences of their decisions.

They fail or refuse to recognize that the difference between a felony and misdemeanor conviction can mean the difference between a job or unemployment; a student loan or no education; a license or a lost chance to work in the trades. They either fail to see or seem not to be concerned that this monumental decision can be life altering and will affect children and family members perpetuating the never-ending circle of hopelessness ignorance and poverty.

Timid Judges

Yet more troubling still is the basic resignation that judges and the defense bar demonstrate in dealing with these outliers — allowing them to act unchecked in the state every day.

The judiciary, the state, and the defense bar should not tolerate these mavericks. Yet too often the judges and defense attorneys are complicit in this unfair system. Some judges, with little criminal law background, are too timid to make the big decision that law and justice sometimes requires. Some inexperienced judges will routinely side with the state when they are unsure what to do — a safe bet in their estimation.

Judges need to hold the state responsible in the face of prosecutorial excess committed by these few. They need to grant motions to suppress when warranted and stop routinely crediting police witnesses as a mere matter of custom, peer pressure or simple lack of courage. The defense bar needs to speak up and reject the notion that the renegade prosecutor is just part of the system. These individuals need to be taken to task when they abuse their discretion or act improperly — the lives of those unlucky ones caught in their crosshairs are at stake. Were this to happen, it would surely be a step toward truly making our criminal justice system the best the world has to offer.•