In Massachusetts, The Unethical Kind Of Prosecutorial Discretion

The DA explains why he's glad the law was broken. Wait...WHAT?

The DA explains why he’s glad the law was broken. Wait…WHAT?

Prosecutorial discretion is a critical aspect of the prosecutorial function. There are many good reasons for a prosecutor  to charge an individual with a crime in a particular case, and among the factors a prosecutor may legitimately consider in making this decision are, according to the American Bar Association’s ethical guidelines:

  • whether there is evidence of the existence of criminal conduct;
  • the nature and seriousness of the problem or alleged offense, including the risk or degree of harm from ongoing criminal conduct;
  • a history of prior violations of the same or similar laws and whether those violations have previously been addressed through law enforcement or other means;
  • the motive, interest, bias or other improper factors that may influence those seeking to initiate or cause the initiation of a criminal investigation;
  • the need for, and expected impact of, criminal enforcement to punish blameworthy behavior; provide specific and/or general deterrence;
  • provide protection to the community; reinforce norms embodied in the criminal law; prevent unauthorized private action to enforce the law;
  • preserve the credibility of the criminal justice system; and other legitimate public interests.
  • whether the costs and benefits of the investigation and of particular investigative tools and techniques are justified in consideration of, among other things, the nature of the criminal activity as well as the impact of conducting the investigation on other enforcement priorities and resources
  • the collateral effects of the investigation on witnesses, subjects, targets and non-culpable third parties, including financial damage and harm to reputation
  • the probability of obtaining sufficient evidence for a successful prosecution of the matter in question, including, if there is a trial, the probability of obtaining a conviction and having the conviction upheld upon appellate review; and
  • whether society’s interest in the matter might be better or equally vindicated by available civil, regulatory, administrative, or private remedies.

None of these suggest that the prosecutor’s personal sympathy with the motives of the lawbreaker is a sufficient or ethical reason not to charge when a serious crime has been committed. That, however, appears to be how Bristol County (Massachusetts) District Attorney Sam Sutter sees his role: arbiter and enabler of righteous criminal activity.

Defendants John O’Hara and Ken Ward were scheduled to go on trial for using a lobster boat to block freighter loaded with 40,000 tons of coal that was bound for the Brayton Point Power Station in Somerset because, you know, global warming and we are all doomed if capitalism isn’t shut down pronto. There was no dispute about what they did. But Sutter dropped the primary charges against O’Hara and Ward, and glorified his decision in front a cheering crowd of warmists, explaining it by the fact that he agreed with the protesters. It was made, he said, with concern for the welfare of “children, the children of Bristol County and beyond in mind” because “climate change is one of the gravest crises our planet has ever faced.”

I don’t know for certain, but I am fairly sure because I have never once encountered a situation where this was not the case, that Sutter understand very little about the causes and likelihood of climate change, how to prevent it or what policies are likely to work. He couldn’t interpret of explain a climate change model, or the reasons why we should believe in the long-term accuracy of any of them when their short-term predictions have failed so regularly. He doesn’t understand the so far unexplained lull in temperature increases around the globe, or  why there was a period before the industrial revolution when the world was even hotter than it is today. He has just accepted whole the talking points and political, rather than scientific assumptions of environmentalists with an agenda. It is more than likely that this also applies to O’Hara, Ward, and 95% of their supporters too (and the thousands of protesters who descended on New York City on Sunday), but what is important is that Sutter’s opinions on global warming should be irrelevant to his discharging of his duty to enforce the laws. Law is what he knows, not environmental science, and if he has an irrational or even a rational affection for a particular law-breaker, that’s called a conflict of interest and bias, making it difficult for him to do his job. That job is to represent the people of Bristol County, not climate change activists.

The guidelines the ABA created for ethical prosecutors also state that…

“When deciding whether to initiate or continue an investigation, the prosecutor should not be influenced by partisan or other improper political or personal considerations…”

Not only was Sutter so influenced, he apparently is proud of it. He needs to find another line of work.

On his blog, law professor Eugene Volokh summarizes the episode thus:

“So the message is clear: If you are engaging in legal behavior that Bristol County D.A. Sam Sutter sufficiently dislikes, and people are criminally interfering with this behavior, don’t expect the criminal law to protect you by deterring such misbehavior; and if you are committing a crime to express a viewpoint that D.A. Sutter likes, you could be free of criminal prosecution. Next stop — no criminal prosecution of people who blockade fur shops? Gun stores? Any other business that the D.A. believes isn’t worthy of full legal protection?”

It would seem so.


Pointer and Facts: Volokh Conspiracy

Source: Think Progress

6 thoughts on “In Massachusetts, The Unethical Kind Of Prosecutorial Discretion

  1. Well, if the lawyers that make up the ABA and support the canons of ethics are sufficiently outraged they can always sanction him by disbarring him. That would send a powerful message. A blog message condemning the prosecutor by a law professor is woefully inadequate.

    If we are going to hold the NFL culpable for protecting its brand image then we must hold the ABA to the same, if not higher, standard.

    • Note: the ABA can’t disbar anybody. The action would have to come from the Mass Bar, and I guarantee that no bar and courts, anywhere, will dare wade into the quagmire of what is ethical proprietorial discretion. Such an action might well refer to the ABA standards, but they are advisory only.

      • Jack:
        Thanks for the correction. I should have known that only the state Bar Associations can impose sanctions. However, when one’s personal beliefs drives the decision on who is prosecuted and who is not then our belief in a blind justice is threatened. This is far worse than ignoring the wrongdoing of a player in some commercial sport. We can see the effects of the public’s lack of trust in the justice system when the public believes prosecutors undercharge or do not charge certain citizens by virtue of their status (read white privilege) for crimes. I believe in prosecutorial discretion and judicial discretion because not all acts, defendants, or situations are alike. But to go well beyond the guidelines suggests the prosecutor of judge is using his/her power to impose his or her will to obtain a political benefit and they are unfit to serve.

        If we consider the harm to the entire legal system that could occur by doing nothing to this prosecutor then the community should step in; quagmire or not.

        If ethical standards that are advisory only, then they are only window dressing to create the illusion of a fair system.

        Perhaps you can comment on the D’Souza sentence.
        “U.S. District Judge Richard Berman in Manhattan sentenced D’Souza, 53, to eight months in a community confinement center during five years of probation after the latter pleaded guilty to violating campaign-finance laws.

        D’Souza, whose top-grossing 2012 documentary blasted President Barack Obama, was also fined $30,000 and ordered to teach English to non-English-speaking people eight hours a week while on probation.

        Berman also imposed therapeutic counseling on D’Souza, in which he is to participate for five years.” (Source: Newsmax 9/23/14)

        I can go along with the confinement and community service elements but what the hell is therapeutic counseling – reeducation? This scares me to death. Is this judicial discretion and if so what limits are there?

  2. (d) When deciding whether to initiate or continue an investigation, the prosecutor should not be influenced by:

    (i) partisan or other improper political or personal considerations, or by the race, ethnicity, religion, gender, sexual orientation, political beliefs or affiliations, age, or social or economic status of the potential subject or victim, unless they are elements of the crime or are relevant to the motive of the perpetrator

    He should have prosecuted the case to retain the integrity of the criminal justice system. The prosecutor has a duty to refrain from sending messages to the public that effectively invites it to break the law whenever it feels like it.

    Should the prosecutor agree with the concerns raised by the public, such concerns can be addressed during plea bargaining and sentencing in the presence of a judge.

  3. So, if he were a smart, unethical prosecutor, he would have declined to prosecute citing a lack of cases where this has been prosecuted before and that he thought this was a maritime navigation matter and would be better handled in a federal court rather than a county court. That way, he could act on his personal prejudices in a way that superficially looked reasonable.

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