June 17, 2024
Annapolis, US 84 F

LETTER: Prosecutorial excess…Who will guard the guardians?

In January of 2013, Anne Arundel County Executive John Leopold was found guilty of “misconduct in office” for forcing a staffer to empty his hospital catheter bag after he’d undergone back surgery.

From the beginning he has denied the charge,  arguing that had his medical records been introduced into evidence at trial they would have positively proven his case – but despite many pleas to his lawyer to do so they never were.

Circuit Judge Dennis Sweeney described Leopold’s behavior as “outrageous and egregious,” and sentenced him to 30 days in the county detention center – despite a recommendation from prosecutors that he receive no jail time. In  Leopold’s case, Judge Sweeney went far beyond the bounds of proportionality.  The only actions that were outrageous and egregious were his.

Most citizens do not realize that prosecutors and judges are rarely held accountable or subjected to our generally hallowed standards of checks and balances.  The rationale behind this policy is sound: once they are elected or appointed, it is important for prosecutors and judges to be independent of politics.  Because they are guardians of justice, the Supreme Court has immunized them from legal liability.

But as the Romans asked centuries ago, “Who will guard the guardians?”

Prosecutors should not be above being scrutinized and held accountable.  Nor should  judges, whom we should hope recognize prosecutorial motivations and have the wisdom to be proportional in their sentencing.

Some excesses are conspicuously unconscionable.  An  Alabama mother was shackled in front of her children for failing to pay parking tickets and forced to clean the courthouse bathrooms.  A disabled man in Missouri was jailed without access to his medications because he could not afford to pay a fine.

In his recent book Usual Cruelty, civil rights attorney Alec Karakatsanis argues that “the decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent.” He goes on to describe “the banality with which the wheels of law enforcement, the courts, and prisons operate because they become desensitized to the pain we cause, and to live our lives without the intellectual and moral rigor that should have prevented so much senseless suffering of powerless people in the name of ‘law enforcement.’”

A few recent high-profile cases amplify the point.

Last year Baltimore Mayor Catherine Pugh resigned her position and pled guilty to conspiracy and tax evasion; while in office she had sold her self-published “Healthy Holly” children’s books to several companies that do business with the city (as well as to the University of Maryland Medical System, where she sat on the board).

Federal prosecutors promptly issued a harsh sentencing memorandum: “The chronology of events since 2011, comprising Pugh’s seven-year scheme to defraud, multiple years of tax evasion, election fraud, and attempted cover-ups, including brazen lies to the public, clearly establishes the deliberateness with which she pursued financial and political gain without a second thought about how it was harming the public’s trust.” They recommended a sentence of nearly five years.

Last week  U.S. District Judge Deborah K. Chasanow sentenced Ms. Pugh to three years in a federal prison.  To some, that seemed appropriate; to others, it was plainly excessive: the fact is  that Ms. Pugh could hardly be disgraced more than she already has been.

Roger Stone’s mini-saga is similarly compelling.   Convicted of lying to Congress and tampering with a witness to prevent investigators from discovering how the 2016 Trump campaign tried to benefit from stolen Democratic documents, the government argued that Mr. Stone, 67, should be sentenced to nine years in prison.

Nine years for lying, when many of those convicted of serious crimes like rape and aggravated assault serve little if any time in prison?  Last week U.S. District Court Judge Amy Berman Jackson sentenced Stone to 31/2 years behind bars. Even that relatively light term, though, is disproportionate to the offense committed.

Civil libertarians have long bemoaned prosecutorial and judicial overzealousness. Many of the abuses occur behind closed doors, in the secrecy of grand jury rooms, and in courtroom corridors where deals are made with informers. Prosecutorial decisions are among the least transparent of any government activity.

This is especially relevant when violence is part of the crime. A number of studies have clearly found that there is virtually no link between incarceration and a decrease in violent crime.

Leopold was elected  Anne Arundel County Executive in 2006.  He has spent the past seven years arguing that key details of his case – particularly the false testimony of one of his caregivers – were never presented to the court despite repeated pleas to his lawyer, Bruce L. Marcus, to do so.  (Refusal to submit exculpatory evidence could amount to malpractice.)

Leopold can’t get back the time he actually served in prison, but he is seeking to have his conviction overturned and expunged from the record.

He wants his reputation back.

The evidence suggests that he deserves it.

–Kenneth Lasson

Kenneth Lasson is a professor of law at the University of Baltimore, where he specializes in civil liberties and international human rights.

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