Justice Tempered with Common Sense

Three recent news items have caught my eye:

• Item. For a senior prank, graduating seniors at a New York high school, in affluent Westchester County, sneaked into their school one night a few days ago and planted 150 alarm clocks, all timed to go off the same time. The clocks were wrapped in duct tape, so that the teachers could not shut them off or remove the batteries. School officials discovered the prank. The bomb squad was called. Felony charges of placing "false bombs" have been filed against 19 students. As one student marvelled: “You say it out loud: What did they do? Well, they put clocks in the school.”
  
  
• Item. A 17-year-old Georgia honor student was sentenced to 10 years in prison for a felony charge of having consensual oral sex with a 15-year-old girl. If they had been having "normal" sex, with the risk of pregnancy, he would have been liable only for misdemeanor charges. After his conviction, the legislature changed the law to prevent such conduct from being considered a felony in the future. A judge ordered the boy released, after he had served over two years in prison. The prosecutor announced he would appeal, and will oppose releasing the boy pending the appeal.
  
  
• Item. A North Carolina district attorney was disbarred for having concealed evidence that would have exonerated several Duke University lacrosse players of the rape charges he had brought against them.

What do these three news items, all appearing within the past week, have in common? Use and abuse of prosecutorial discretion.

A prosecutor or district attorney is not just another attorney representing a client, in this case the State. He has the ethical duty to see that justice is done. His duty is not simply to win cases.

Criminal laws are necessarily written very precisely. If A, B, and C occur, the crime of D has been committed. But such statutes often sweep up minor misconduct that was never intended to be punished, at least not under that statute. Furthermore, if all conduct arguably falling under the statutory definition was charged, the courts would be inundated with trials of persons who pose no danger to the state. It is the prosecutor's responsibility to make the discretionary decision in each case under investigation whether to bring charges.

In the Georgia case, one wonders whether the prosecutor would have brought felony charges, with a mandatory 10-year prison sentence, if the boy had been white. Maybe so, but what conceivable good to the people of Georgia would result from locking such a boy up until he was 27? Even more incredible is the prosecutor's decision to appeal the release of the young man after he has already served 15 months longer than the same conduct could have drawn as a maximum sentence under the amended statute. How rare is this particular conduct between high school students in Georgia, I wonder? How many do you suppose ever ended up spending 10 years in prison?

In the Duke case, the district attorney was not disbarred for an abuse of prosecutorial discretion, but for deceit and dishonesty in his handling of evidence. But the case calls into question the original decision to charge the students, with no evidence to support the prosecution other than the "exotic dancer's" conflicting statements, and then the failure to drop the charges once the DNA results were in.

Finally, in the New York case -- felony charges? Against 19 graduating seniors (almost 10 percent of the graduating class), because they used a missing key to sneak into the school and leave alarm clocks as a prank? One hopes that calmer minds will prevail, and that the kids, now sadder and wiser, will be let off with some form of community service to keep them busy for a while before starting college next fall