Observant little ...

I don't understand the answer, but I may have some ideas on the question...

prosecutorial discretion

There's been quite a lot of discussion in the Queensland media lately about prosecutorial discretion, but can you imagine the furor if this happened here?

"This" is that a guy has been sentenced to 25 years in prison for drug trafficking, obtaining a controlled substance by fraud and possession of controlled substances. Not so bad huh? Except that the guy was in possession of prescription drugs used to manage his chronic pain. And the only reason he had the quantities he had was because he had to take excessive quantities because he was addicted to them, not because he was selling them to someone else.

What gets me is the charge for drug trafficking. It seems that you are guilty of this offence if you possess a certain quantity of a controlled substance (like a prescription drug), whether or not you had on-sold it or intended to on-sell it. Apparently the prosecutor in this case admitted that the guy was not trafficking, but they charged him with it anyway.

Leaving aside whether there should be a mandatory minimum sentence for something like this (which is why he got 25 years), surely this is a pure example of where prosecutorial discretion should be used to not charge someone with an offence of which they are technically guilty but are not committing the sort of offence intended to be caught by the statute.

I mean, honestly. Why not just leave it at the obtaining a controlled substance by fraud and possession of controlled substances? Why go the extra step and charge him with trafficking when you know he's not actually trafficking? At least that way, it's more likely that he would have got a sentence appropriate for the crime.

But apparently prosecutors think it's the guys own fault, since he was offered a deal and didn't take it because he wouldn't consider any deal that included time in prison. Which is his right. If he doesn't think he's done anything wrong, he's entitled to defend the case. It shouldn't lead to a manifestly excessive penalty!

Some people just don't seem to get that just because there's a breach, you don't automatically have to prosecute. And each charge should be considered on it's own. I think it's completely unethical to charge someone with a technical breach which has good public policy reasons for a non-prosecutorial compliance action just because you want some leverage to plea bargain it down.



Listening to: Mercury Rev - The Secret Migration


Blogger Aurelius said...

So prosecutors are fuckwits, and the law is an ass.
This shocks you OLS?

9:49 pm  
Blogger the urban fox said...

Perhaps it'll go to appeal and some common sense will be applied.

2:59 am  
Blogger Aurelius said...

And a case that should have been thrown out gets overturned on appeal, and all is okay.
Except that the poor sucker who had to go thru it will end up with legal bills double what he should.
But that's okay, because only guilty people even get charged.

3:50 am  
Blogger the urban fox said...

I would hope that a successful appeal would be followed with an application for financial redress. But I don't know how American law works.

6:57 am  
Blogger Aurelius said...

OLS might be able to clarify this for us, but in the Australian system at least, legal expenses for the original trial are not awarded, even if one wins an appeal.
Justice is a system set up by the aristocracy to keep the lower classes down.

11:02 am  
Anonymous OLS said...

Saying all prosecutors are fuckwits is like saying all lawyers are crooked. There are a small number who taint the rest.

And since the fraud elements were proven, I don't think that the case should have been thrown out. In any event "thrown out" usually involves the judge ruling it out, and that would mean the judge would have to make a ruling against law. The judge may not like it, but he has to apply the law as it is.

From what I can gather, Aussie law is the same as US law in the sense of costs. For a criminal trial, you can only seek costs in extraordinary circumstances (eg where the prosecution is an abuse of process). And if the matter is overturned on appeal, it is within the judges discretion to order that a party pay the costs both of the appeal and of the original trial.

For civil matters, costs can more easily be obtained, and for every hearing, including interlocutory hearings.

Of course, the costs ordered by the court rarely cover the full cost of actually taking a matter to court, but that's an issue for another day.

That's very much a summary, but I think I've covered the major points. Feel free to ask questions. ;o)


9:11 pm  
Blogger sarni said...

I think that there are offenders on both sides of criminal law - prosecutors (and police) who go a bit too far in their eagerness to convict, and lawyers who use dodgy and immoral tactics to get their clients off. You'll never find any community which doesn't have its share of villains and heroes.

11:15 pm  
Anonymous OLS said...

sarni - I agree. Maybe I'm showing my dewey-eyed optimism, but I believe in the system. I wouldn't be able to work within it if I didn't. It's not perfect, but it's better than anything else I've heard of.

Prosecutors tend to be in a particularly difficult position. On the one hand, they've got the cops who get really narky when a case they've put numerous hours into goes pear-shaped, and the victims (or victim groups) who want the defendent to have the book thrown at them. On the other hand, they've got the defendents who often a horrendous history behind them and can create genuine sympathy.

It's not an easy job and I generally respect those that do it. But it's the prosecutor's job to weigh all of the factors in a prosecution unemotionally and do what is best for "the people" - that includes taking the public interest into account and exercising prosecutorial discretion.

Man! I really could rant about this all day, couldn't I? ;o)


10:32 am  
Blogger PD Dude said...

OLS, I'm glad you found this on my blog and wrote about it on your blog, interesting comments here.

Just to disabuse any of you of the notion that justice will prevail in the appeals courts, or that somehow he'll have any of his life returned to him, let me assure you all that this will not happen. The Courts are not really permitted to consider things like "justice," "morality," "right and wrong" and "unfairness" when considering this case.

The statute, written by the legislature, calls for a prescribed penalty, the judge, carrying out the will of the "people," imposed the sentence required by law. The appeals courts will look and see if the judge followed the law, if he did, then the poor fellow is out of luck, and will likely spend the rest of his life in prison.

There is a debate going on in America right now, and has been for 50 years, and will get larger as we debate the new appointment to the Supreme Court, as to whether Judges should look to create "justice," even if it sometimes conflicts with the law. Conservatives generally say "no" (this is because they are generally trying to prevent changes to society that would be considered just, such as, in the past, civil rights, and now, rights for criminally accused). I say generally, of course, because conservatives know how to extract every legal right imaginable from the system when one of their own is charged (like Oliver North in the 1980s, or Rush Limbaugh today).

The people who run the whole system, be deciding what to charge and how much to seek, are the prosecutors, and, yes, they really can be "fuckwits!"

1:25 pm  
Blogger OLS said...

PD Dude - since I'm a government lawyer myself, I've come across many judges here in Oz who will apply the law as written, but often make comments that they are required to apply the law as written but think it's a bastard provision and shouldn't be law in the first place (or, at least, words to that effect).

They also tend to find ways to get around the law if they possibly can. Especially appellate judges.

Is that not the case in the USA then? I suppose we have far less judges since we have far less states. We also have a fairly progressive High Court, which overides all of them. Could well be the difference.


3:26 pm  
Blogger Lushlife said...

Having done some quasi-criminal prosecutions I have some opinions of the concept of "prosecutorial discretion" when I first started I was introduced to some of the lawyers and I was told that one in particular believed that EVERYONE should be prosecuted for at least one thing in their lives. As it turned out I did not but I did finid out that some people do believe in prosecuting everyone if they could.

I have had to argue prosecutorial discretion with the authority who had brought a matter to me they were mighty annoyed about my view but I persisted and had my way - luckily it was not of matter of significance in the public domain - I could imagine how difficult it would be for one solitary prosecutor to get the backing of the boss to not proceed with a matter which is attracting political attention.

I agree with you on how difficult a position prosecutors can be put in when things go pear-shaped ie if your witnesses had have come up to scratch and your judge didn't decide to prefer senior counsel over you (very junior legal officer!) then everything might have gone fine! I recall prior to leaving that legislative amendments were made with regard to obtaining costs for criminal matters. I used to ask for costs (magistrates court) if I won - occassionally I got them - occassionally I (the prosecuting authority) had to pay them if we lost.

8:39 pm  
Blogger Aurelius said...

Just to clarify OLS, I was alleging the fuckwitedness of the prosecutors not for prosecuting, but for thinking it's the chap's fault for fighting the charge.
The silly chap obviously thought that if he wasn't trafficking, he'd not be found guilty of it. It's a naive notion, but one that non-experts in the legal system seem to believe in.
Funnily enough, it's a notion that many within the legal system like to perpetuate amongst the uninformed.

10:35 am  

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