2017/04/22

History of legal corruption in the United States

Having been asked for a quote of a prominent legal figure on prosecutorial corruption, especially the kind that results in wrongful convictions, it is difficult to find something pithy.

There is nothing new about prosecutorial corruption. It is as old as prosecutors. We can see it in the prosecution of John Lilburne, in the prosecution of Penn and Mead, and the subsequent prosecution of the jury foreman, Edward Bushell, for acquitting them. Those are the classic cases. Everyone knew the prosecutions were corrupt, but you won't find compact quotes to that, partly because the prosecutions failed.

Corrupt prosecutions were a major issue in the British colonies, which led to many of the complaints in the Declaration of Independence.

It was also an issue in prosecutions under the 1798 Alien and Sedition Acts, such as that of John Fries. But although unconstitutional, they were not called "corrupt" at the time.

Prosecutorial corruption is part of the larger problems of judicial and legal corruption. From devotion to the ideals of justice in the Early Republic, there has been a steady and sometimes rapid decline in legal ethics in the United States, until now the entire profession has become corrupt in different ways and to varying degrees. It is difficult today for an honest lawyer to practice conscientiously and not be disbarred. Requiring lawyers to be members of the Bar is another way they are controlled for corrupt purposes.

It is important to understand that the modern institution of the "public prosecutor" is relatively recent. Before about the 1890s most cases were prosecuted by private attorneys either hired to do it or appointed by the judge from among the lawyers locally available. This became too much a burden on them, so they sought to have a office of public prosecutor created that would be fully funded. The public wanted the elect the person who held that position, because they didn't trust anyone who might appoint them. Seemingly a good idea, but the public mostly didn't know enough about candidates for the office to select only those of good character. They wound up voting for those with the most convictions, regardless of how those convictions were obtained. We would have been better off if public prosecutors were selected at random.

Originally grand juries were supposed to screen proposed prosecutions to weed out any corrupt ones, but grand juries became captured by public prosecutors, or in some states, beginning with California, reduced to a role as auditors of public administration.

It didn't help that many judges rose from the position of public prosecutor, and carried a prosecutorial bias with them.

So now we get prosecutorial corruption that is massive. A new prosecutor in Dallas found that his predecessor has conspired with police to use bags of plaster of Paris as evidence of cocaine. He then tried to get most of the resulting convictions overturned. But he was exceptional.

One prominent legal figure who has condemned legal corruption, and not just prosecutorial corruption, is Alan Dershowitz, in private conversation. Whether one could get him to make a statement on the record is another matter.

Links:

http://constitution.org/jury/pj/pj-us.htm
http://constitution.org/jury/gj/gj-us.htm

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