Balancing the Power: So You Want to Provide Checks to the Prosecutor . . .

 How do you provide a system of checks and balances for prosecutors?  It's a question which has been debated rather heatedly since the suicide of Aaron Swarz.  Every blog seems to have had some say in the matter and today, an Article in the Atlantic summarized a law review article and several blogs to provide eight points which have been proffered as means of clipping the wings of prosecutors.

Most of that which was offered in the article  is somewhat silly and the plea bargaining suggestions would make things worse.  In fact, the only idea which makes a great deal of sense is the one cribbed from Orin Kerr.  If you really want to take power away from prosecutors the first thing you would do is eliminate stacking of charges.

Here are some actual things you could do if you were seriously interested in reforming the system:

A)  Limit stacking of charges.
B)  Eliminate minimum punishments, whether mandatory or suspendable.
C)  Have juries sentence if they find a defendant guilty, but limit their maximum sentence to the amount possible by adding the maximum sentences of the two offenses with the highest possible punishments.
D)  In cases where juries do not sentence, limit the sentence on each offense convicted to a range of between one year above and one year below the the cumulative of the two highest average sentences, in the last ten years, given by juries for the offenses charged.

Limiting the stacking of charges would be the first step in this sort of reform.  Here's the best example of this sort of statute I can come up with off the top of my head.

19.2-9999  Repetitive Charging
(A) A defendant can be indicted on no more than five charges proceeding from related events, occurring in the same location, involving the same instrument, or affecting the same victim.
(B) This section shall not limit the number of murder, wounding, injury, or rape charges which can be brought against an individual.

The first sentence would generally limit stacking too many charges, but I think (B) is needed for scenarios such as a bank robber who kills eight hostages or a rapist who abducts a women for seven days and rapes her one or more times each day.  These are not the kind of things that an anti-stacking statute should limit.

Eliminating minimum punishments - in particular mandatory minimums - takes a strong tool out of the hands of prosecutors. Minimums give the prosecution a strong opening position to negotiate from and their removal will change the dynamic quite a bit.

Jury sentencing is the ultimate way of determining what the residents of a State believe to be the appropriate sentence for a crime.  Picture a case in which a jury has just convicted a man of second degree murder.  Having no minimum punishment (as supra) and a maximum of forty years, the jury would determine what it thought to be appropriate considering the defendant's prior record, aggravating facts, and mitigating facts - all presented in a bifurcated sentencing hearing.  This places a lot of power outside of the reach of both the prosecutor and the judge.

Sentencing without a jury would be dead simple.  The average punishment for specific crimes could be published every year in a set of tables available to everyone (except sentencing juries so that results are not tainted).  Consider someone charged as follows:

CHARGE	MAXIMUM	JURY AVG
Shoplifting 3d	5 years	8 months
A&B Police Officer	5 years	6 months
Felon Possess Ammo	5 years	1 month
Possess Oxycodone	10 years	11 months
Possess Marijuana	12 months	15 days

The two highest are Shoplifting 3d (8 months) and Possess Oxycodone (11 months) for a total of 19 months.  If the defendant pled guilty, or was found guilty by a judge, he would know that he was facing a sentence between 7 months and 31 months.  If he chose to take a jury he would know that he was facing a maximum of 15 years in prison and that juries sentencing somewhat similar defendants had averaged a sentence of 26.5 months.

For this to work properly - particularly in the federal system - the average sentence for each offense would not be that handed down initially by the judge, but the sentence after any adjustments downward were made while the defendant was serving his time through things like a 5K motion.  Otherwise the system is highly manipulable.

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Do I think the above would make a perfect system? No. But, then again, I don't believe that a perfect system is possible.  However, if you wanted to provide checks and balances to the prosecution, this would probably be the direction you'd want to travel.