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U.S. Prosecutors Have Too Much Power

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  • Is Immunity for Prosecutors Too Strong?

    Clip: Debaters argue whether prosecutors are too shielded by immunity from disciplinary action due to prosecutorial misconduct.

  • Checks and Balances in Plea Bargaining

    Clip: Nancy Gertner and David Hoffman take on the issue of plea bargaining and whether there is an imbalance of power between prosecutors and defense attorneys.

  • 2-Minute Debate: Do U.S. Prosecutors Have Too Much Power?

    Do U.S. prosecutors have too much power? This debate short is part of a series co-produced by Intelligence Squared U.S. and Newsy.

Debate Details

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?

The Debaters

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... Read More

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... Read More

Against the motion

David Hoffman

Fmr. Federal Prosecutor & Partner, Sidley Austin

David Hoffman is a partner at Sidley Austin and is the co-head of Sidley’s White Collar Group in Chicago, where his practice focuses on complex litigation... Read More

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... Read More

Where Do You Stand?

For The Motion
  • Prosecutors control which cases to pursue, who will get charged, and what the sentence will be. These immense powers give prosecutors leverage to undermine the right to trial by jury, pressuring defendants into pleading guilty. Over 90% of both federal and state court cases are resolved through plea bargaining, not through jury trials.
  • The exercise of these very same powers, in the absence of transparency, also causes unequal justice.
  • Prosecutors may impair the fact-finding process by withholding evidence and through their control of witnesses.
Against The Motion
  • Prosecutors must have all the tools available to them to prosecute crimes of great complexity, to hold the powerful accountable, and to keep communities and our nation safe.
  • There are already checks in place to balance prosecutorial power—judges, defense lawyers, and the law enforcement agencies prosecutors must work with.
  • Pleas are voluntary, and often achieve the cooperation that leads to stopping the chief wrongdoers.

Results

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Pre-Debate
Post-Debate

The Research

The Research

Steps in the Federal Criminal Process

Offices of the United States Attorneys
December 31, 1969

How the criminal process works in the federal system.

Prosecutors: Judgment Requires Power; Power Requires Judgment

Samuel Buell
August 19, 2012

Discovering and proving sophisticated crimes requires extensive powers — chiefly far-reaching statutes defining crimes broadly and ample leeway for decisions on the ground about where to direct resources in the form of grand juries, charges and agreements for testimony.

A Plea for Change

Economist Editorial Board
March 1, 2016

American prosecutors have too much power. Hand some of it to judges.

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