The Politics Of Federal Prosecution

Federal prosecutors have immense power and discretion to decide when to bring criminal charges, what plea bargains to offer, and how to implement the federal government's legal priorities in their districts. While U.S. Attorneys take pains to emphasize their independence, we know relatively little about the extent to which politics colors federal prosecutorial staffing and decision making. The Politics of Federal Prosecution draws upon a wealth of data from 1990s to the present to examine the interplay of political factors and federal prosecution. First, the authors find that congressional and presidential politics affect who becomes federal prosecutors and how long those individuals serve. Second, the book demonstrates that signals of presidential and congressional preferences, along with local priorities, affect key prosecutorial decisions: whether to bring prosecutions, how to approach plea bargaining negotiations, and when to utilize criminal asset forfeiture to cripple criminal activities. In short, the book demonstrates that politics affects the behavior of U.S. Attorneys at nearly every stage of their service.

"In February 2016, while testifying in a House Appropriations Subcommittee hearing, U.S. Attorney General Loretta Lynch, a Barack Obama appointee, promised that her department would act with independence in investigating Hillary Clinton's usage of a personal email server during her tenure as Secretary of State. During that hearing, Congressman John Carter (R-TX) asked Lynch: If the FBI makes the case that Hillary Clinton mishandled classified information and put America's security at risk, will you prosecute the case? . . .[P]lease look the American people in the eye and tell us what your position is as you are the chief prosecutor of the United States. In response to this questioning, Lynch asserted that: [The matter] is being handled by . . . independent attorneys in the Department of Justice. They follow the evidence, they look at the law and they'll make a recommendation to me when the time is appropriate. . .This will be conducted as every other case. We will review all the facts and all the evidence and come to an independent conclusion as how to best handle it. And I am also aware of no efforts to undermine our review or investigation into this matter at all (Goldman 2016). Despite strong claims of prosecutorial independence, many Republicans complained that a Department of Justice run by Obama appointees could not impartially pass legal judgment on the Hillary Clintonemails matter. A June 27, 2016 meeting between Lynch and former U.S. President Bill Clinton would not help matters. The two privately talked for approximately 20 minutes on a plane sitting on the Phoenix Sky Harbor airport tarmac in a meeting described as unplanned and "primarily social." Despite the meeting's claimed innocuous content, it "caused a cascading political storm" for Hillary Clinton's presidential campaign and "provided fodder for Republicans who have accused the Justice Department of bias in its inquiry into Secretary Clinton's use of a private email server at the State Department" (Chozick 2016). Even Democrats expressed concerns about the meeting Senator Chris Coons (D-DE) remarked that "I do think that this meeting sends the wrong signal . . . I think she should have steered clear, even of a brief, casual social meeting with the former president"--

United States Attorneys (USAs), the chief federal prosecutors in each judicial district, are key in determining how the federal government uses coercive force against its citizens. How much control do national political actors exert over the prosecutorial decisions of USAs? In this text, the authors investigate this question using a unique data set of federal criminal prosecutions between 1986 and 2015 that captures both decisions by USAs to file cases as well as the sentences that result.

Federal prosecutors have immense power and discretion to decide when to bring criminal charges, what plea bargains to offer, and how to implement the federal government's legal priorities in their districts. While U.S. Attorneys take pains to emphasize their independence, we know relatively little about the extent to which politics colors federal prosecutorial staffing and decision making. The Politics of Federal Prosecution draws upon a wealth of data from 1990s to the present to examine the interplay of political factors and federal prosecution. First, the authors find that congressional and presidential politics affect who becomes federal prosecutors and how long those individuals serve. Second, the book demonstrates that signals of presidential and congressional preferences, along with local priorities, affect key prosecutorial decisions: whether to bring prosecutions, how to approach plea bargaining negotiations, and when to utilize criminal asset forfeiture to cripple criminal activities. In short, the book demonstrates that politics affects the behavior of U.S. Attorneys at nearly every stage of their service.

The U.S. government's power to categorize individuals as terrorist suspects and therefore ineligible for certain long-standing constitutional protections has expanded exponentially since 9/11, all the while remaining resistant to oversight. Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions provides a comprehensive and uniquely up-to-date dissection of the government's advantages over suspects in criminal prosecutions of terrorism, which are driven by a preventive mindset that purports to stop plots before they can come to fruition. It establishes the background for these controversial policies and practices and then demonstrates how they have impeded the normal goals of criminal prosecution, even in light of a competing military tribunal model. Proceeding in a linear manner from the investigatory stage of a prosecution on through to sentencing, the book documents the emergence of a "terrorist exceptionalism" to normal rules of criminal law and procedure and questions whether the government has overstated the threat posed by the individuals it charges with these crimes. Included is a discussion of the large-scale spying and use of informants rooted in the questionable "radicalization" theory; the material support statute--the government's chief legal tool in bringing criminal prosecutions; the new rules regarding generation of evidence and the broad construction of that evidence as relevant at trial; and a look at the special sentencing and confinement regimes for those convicted of terrorist crimes. In this critical examination of terrorism prosecutions in federal court, Professor Said reveals a phenomenon at odds with basic constitutional protections for criminal defendants.

The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways. In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration. Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants—particularly those who are African American— and exposes deep injustices in the federal courts. As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980. Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases. Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights. For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences—including life in prison without parole. Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment. Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts. For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack. In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs. Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted. Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.

This book evaluates how structural reform litigation initiated by federal intervention has transformed police departments and reduced law enforcement misconduct.