U.S. Prosecutors Have Too Much Power

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Tuesday, November 10, 2015

Today, a national debate rages about the functioning of our criminal justice system. Is it fair? Does it serve the ends of justice and public safety? Does it apply equally to all? Prosecutors, endowed with both autonomy and immunity, hold immense power within this system. They control secret grand jury proceedings, who will be prosecuted, and the specifics of charges. Moreover, those charges are often based on complex laws -- and enforced by long mandatory minimum prison sentences -- creating strong incentives for defendants to capitulate to lesser charges, perhaps even to crimes they did not commit. Indeed, more than 90% of both federal and state court cases never go trial, but instead are resolved through plea bargaining. Autonomy and secrecy, complex criminal code and mandatory minimums -- in combination, these factors have given prosecutors enormous leverage, and the opportunity to wield it relentlessly and selectively. The results, critics charge, are the undermining of the right to jury trial, mass incarceration, public skepticism regarding equal justice, and immense pressure on every defendant.

Yet there can be no justice without empowered prosecutors. And is abuse really endemic? Isn't the national crime rate down over the long-term, showing that these powers work? And would changes reducing the leverage of prosecutors in the criminal justice system weaken their critical responsibility to prosecute crimes of great complexity, keep communities and the nation safe, and secure justice? Do prosecutors have too much power?

  • PaulButler90px

    For

    Paul Butler

    Fmr. Federal Prosecutor & Professor, Georgetown Law

  • NancyGertner90px

    For

    Nancy Gertner

    Fmr. Federal Judge & Sr. Lecturer, Harvard Law

  • DavidHoffman90px

    Against

    David Hoffman

    Fmr. Federal Prosecutor & Partner, Sidley Austin

  • Reid Schar 90px

    Against

    Reid Schar

    Fmr. Federal Prosecutor & Partner, Jenner & Block


    • Moderator Image

      MODERATOR

      John Donvan

      Author & Correspondent for ABC News

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Presented in partnership with Northwestern Pritzker School of Law, this debate initiates the newly-founded Newt and Jo Minow Debate Series. The Minow Debates are made possible by friends and colleagues of Newton N. Minow, a 1950 graduate of Northwestern Law, who together donated funds to honor his numerous contributions to public and civic life by establishing an endowment to support a series of debates that engage outside experts, law school faculty, and students on important and timely legal topics. Learn more at law.northwestern.edu.

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PaulButler90px

For The Motion

Paul Butler

Fmr. Federal Prosecutor & Professor, Georgetown Law

Paul Butler, professor of law at Georgetown Law, researches and teaches in the areas of criminal law, race relations law, and critical theory. Prior to joining the academy, he served as a federal prosecutor with the U.S. Department of Justice, where his specialty was public corruption. His prosecutions included a U.S. senator, three FBI agents, and several other law enforcement officials. While at the DOJ, Butler also worked as a special assistant U.S. attorney in the District of Columbia, prosecuting drug and gun cases. One of the nation’s most frequently consulted scholars on issues of race and criminal justice, Butler has been featured across academic and popular media. His scholarship has been published in leading scholarly journals, including Yale Law Journal, Harvard Law Review, Stanford Law Review, and UCLA Law Review. He is the author of the widely reviewed Let’s Get Free: A Hip-Hop Theory of Justice, which received the Harry Chapin Media award.

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NancyGertner90px

For The Motion

Nancy Gertner

Fmr. Federal Judge & Sr. Lecturer, Harvard Law

Nancy Gertner, a former U.S. federal judge, has built her career around standing up for women’s rights, civil liberties, and justice for all. She was appointed to the federal bench of the U.S. District Court of Massachusetts by President Bill Clinton in 1994. In 2008 she received the Thurgood Marshall Award from the American Bar Association, Section of Individual Rights and Responsibilities, which recognized her contributions to advancing human rights and civil liberties. The Marshall award has been given to one other woman, Justice Ruth Ginsburg. In 2011, Gertner retired from the federal bench and became part of the faculty of the Harvard Law School, where she teaches a number of subjects, including criminal law, criminal procedure, forensic science, and sentencing. Before joining the bench, Gertner represented civil plaintiffs and criminal defendants in benchmark cases focused on women’s rights and civil liberties. The author of several books, articles, and chapters, she has published widely on sentencing, discrimination, forensic evidence, women’s rights, and the jury system.

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DavidHoffman90px

Against The Motion

David Hoffman

Fmr. Federal Prosecutor & Partner, Sidley Austin

David Hoffman, a former inspector general and federal prosecutor, is a partner at Sidley Austin, where he co-heads the White Collar Group. He has tried over a dozen federal jury cases, argued and briefed multiple appeals in the U.S. Court of Appeals, directed hundreds of investigations, and advised numerous public and private entities on ethics and compliance matters. From 1998 to 2005, Hoffman was an assistant U.S. attorney in Chicago, where he was promoted to deputy chief of the Narcotics and Gangs Section. From 2005 to 2009, he served as Chicago’s inspector general, transforming the office into a strong, independent anti-corruption agency. He also served on the Illinois Reform Commission, a body appointed to recommend anti-corruption reforms. Hoffman ran for U.S. Senate in 2010, placing second in the Democratic primary. He clerked for Chief Justice William H. Rehnquist and for Judge Dennis G. Jacobs of the U.S. Court of Appeals for the Second Circuit.

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Reid Schar 90px

Against The Motion

Reid Schar

Fmr. Federal Prosecutor & Partner, Jenner & Block

Reid Schar, a former federal prosecutor, is a partner at Jenner & Block, where he co-chairs the White Collar Defense and Investigations Practice. During his 13-year tenure at the U.S. Attorney’s Office for the Northern District of Illinois, he tried more than 20 criminal cases, involving complex fraud, public corruption, terrorism and terrorism financing, environmental crimes, tax violations, violent crimes, and narcotics conspiracies. Notably, Schar was the lead prosecutor in both corruption trials of former Governor Rod Blagojevich. He also served as counsel to the U.S. Attorney, providing guidance in significant case, program, and management decisions of the U.S. Attorney’s Office. Since 2002, Schar has served as an adjunct professor at Northwestern University School of Law. Recently, he was appointed to serve as special counsel to the New Jersey joint legislative committee investigating questions regarding the decision to close access lanes to the George Washington Bridge (generally referred to as “Bridgegate”).

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Declared Winner: Against The Motion

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Voting Breakdown:
 

46% voted the same way in both pre - and post-debate votes(29% voted FOR Twice, 13% voted AGAINST Twice, 4% voted UNDECIDED Twice). 54% changed their minds (3% voted AGAINST then changed to FOR, 22% voted UNDECIDED then changed to FOR, 7% voted FOR then changed to AGAINST, 16% voted UNDECIDED then changed to AGAINST, 4% voted FOR then changed to UNDECIDED, 2% voted AGAINST then changed to UNDECIDED)| Breakdown Graphic

About This Event

10 comments

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  • Comment Link Toney Betton Thursday, 11 February 2016 20:06 posted by Toney Betton

    See Josh Duker's comment above. I've been wanting reform on the procedure used to evaluate the winners for years now.

  • Comment Link Josh Duker Thursday, 14 January 2016 13:30 posted by Josh Duker

    The way you calculate your winners is faulty, and in this case, has the wrong side winning. You judge by the winner by the one who has gained the most percentage points over the course of the debate. This fails to take into account that a side starting with a larger share of the votes has a much lower ceiling as to how many minds they can change. In this case, the side arguing for the motion started with 40% of the vote, so the maximum they could advance is 60% (the 42% undecided and the 18% against). Of these, they convinced 14%, which is 24% of their possible total. By contrast, the side arguing against the motion had the ability to increase their total by 82% (the 42% undecided and the 40% in favor). Of these, they convinced 18%, which is about 21% of their possible total. So, you tell me: Which side did a better job in convincing those who did not agree with them at the outset (I’ll give you a hint: It is not the winning side).

  • Comment Link Scott Ruffner Sunday, 03 January 2016 20:10 posted by Scott Ruffner

    Another debate where the raw numbers belie the conclusion suggested by the "result" and where the question of audience stacking is raised. IQ2 is a wonderful concept and offers an opportunity for thoughtful public discussion of complex and important issues, but the...anomalous...results kind of take the shine off.

  • Comment Link Brenda Sunday, 06 December 2015 22:31 posted by Brenda

    brilliant Nancy Gertner! Thank you, also, to Paul Butler for remembering that real people suffer.

    Reid Schar's voice quakes the way Sam Waterston's does when he's arguing a case on Law & Order; and, snore....Rod Blagojevich? This is his response to prosecutorial power? Mass incarceration can be responded to with Roddy's case?

    I wonder if Hoffman and Schar, in their new roles as defense lawyers, have accommodated their prior positions of ultimate power with the checks and balances of malpractice suits, ARDC beefs, and zero prospect of a 99% success rate.

  • Comment Link Robert Thursday, 19 November 2015 22:18 posted by Robert

    I listened to this debate with an open mind. I had some opinions but I also knew that I didn't know as much as the debaters on this subject. So I was looking forward learning something new. That didn't happen. I expected a fierce debate by lawyers who by virtue of their profession should be good at this and I didn't get it. What I go was an unevolving argument where either side really adapted to the other. Here are a couple of my issues.

    1) The "against" side cited all of the checks and balances that prosecutors have. That a judges and appeals courts can change the dynamic if they wanted to. I am not a lawyer so maybe I wouldn't answer that the way one would. Still, the "for" side let that fact hang without addressing it. They had a judge on their side and the most she said was how little she knew about defendants when they came to her. As a nonlawyer that makes her look like a bad judge, not like there is some sort of systematic problem.

    2) Why did no one attack the issue with gang leaders and corrupt politicians? Seriously, what was the or side thinking? Of course prosecutors need a lot of power take them down, they have resources. What sort of resources does some over charged 19 year old kid have? Did anyone think to question that?

    The "for" side deserved to lose this one.

  • Comment Link Tony Thursday, 12 November 2015 12:07 posted by Tony

    @Jennifer

    Intelligence Squared debates are actually the opposite of racist when they choose debaters. So although you would like to see a panel where the only qualifications are race and gender, they actually go out and find experts in their field to debate. In this manner they can have intelligent debates between experts rather than just a discussion between a group of people.

    Yes, this debate happened to showcase 2 white men, a white woman and a black man. That was the distribution of experts that they both found and who accepted the invitation.

    If your only requirement for watching a debate is the racial/gender spread being even then browse their history, they have plenty of debates that through chance happen to have experts that also match whatever you think is a fair distribution.

  • Comment Link WeNeedaDream Tuesday, 10 November 2015 20:09 posted by WeNeedaDream

    Sobering
    I don't see a solution within the current consciousness of system and people

  • Comment Link Jennifer Tuesday, 10 November 2015 17:04 posted by Jennifer

    Why is there only ONE man of color in the whole panel with the rest dominated by White people? How could this debate possibly be equal in scope? You are demonstrating the reasons for why our justice system is so freakin' goofy!!! Just with this panel alone!!!!!

  • Comment Link Scott Fawell Monday, 09 November 2015 11:56 posted by Scott Fawell

    First let me commend Northwestern for having the intellectual courage to open up this topic for debate. They have been the lone voice asking the tough questions and crying out for fairness, and justice. If not for their efforts, abuses by police and prosecutors would have gone and continue to go unchallenged.

    The answer to the question is an obvious yes. There is no disputing two facts; they have absolute power, and unlimited resources. The absolute power allows them to control the process, to pressure and intimidate witnesses, and to manipulate testimony. Having lived through and seen first hand how vicious and cut throat they play in order to win, and win at all costs, the process certainly opened my eyes to the unchecked power and abuses of the government (prosecutors). Even more importantly I came away concerned by the lack of the publics attention to and passive acquiescence to such abuses.

    Now I know some will say I'm just bitter cause "they caught me". That is not the case. I've happily moved on with my life. I am just truly concerned with the unfairness of our criminal justice system....not for me but for the next individual who gets caught in their web, who has no chance to win, no chance for a real full hearing of evidence, no chance to bring witnesses who have not been intimidated by the prosecutors, and because of all that, no chance for real justice. Does anyone really believe that a 99% conviction rate just happens? Do you trule believe it's so solely because the government investigators and prosecutors are just that good? And that the defendant was really given a fair opportunity to tell his or her side of the story? 99%? Doesn't that number alone make you think that maybe the deck is stacked? Think about it, and if you agree I encourage you to act on it, because inaction on this very fundamental issue and right equayes to acceptance of the status quo.

  • Comment Link John s tennial Thursday, 29 October 2015 19:34 posted by John s tennial

    Yes they do. And that power is transferred down to the States Attorney Generals and States Attorneys when US Prosecutors utilize selective prosecution to allow local prosecutors to violate individuals Civil Rights.
    Your refusal or failure to activily guarantee individual rights have led to a total distrust and lack of respect for goverment.
    And when u do prosecute members of the upper crust it is an all together different variety in proceedings and sentencing.

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