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Editorial: Prosecution or persecution? If Justice won't clean up its act, Congress should Sunday, December 13, 1998
The philosophy of the past 10 years [is] that whatever works is all right." That statement by a former federal prosecutor in Florida pithily sums up "Win At All Costs," Post-Gazette investigative reporter Bill Moushey's monumental 10-part series on abuse and lawbreaking by prosecutors and federal agents. The question is whether the U.S. Department of Justice has gotten the message.
If it does not move on its own to rein in prosecutors who cross the line between prosecution and persecution, it can expect Congress to step in.
Mr. Moushey and local news editor Bob Martinson have reported that federal agents and prosecutors broke the law in hundreds of cases. They have offered a wealth of detail amassed in a two-year investigation to suggest that, on the theory that "if it works it's all right," federal prosecutors and law enforcement agents have:
Not all of the blame lies with the Justice Department and its oblivious overseers. Fighting the "war on drugs" not wisely but too well, Congress has promulgated harsh mandatory minimum sentences for even small-time drug offenders, crowding the prisons and increasing the pressure on defendants facing years in prison to cooperate by implicating others - whether their information is true or not. Congress also has given a green light to sting operations.
The U.S. Supreme Court, meanwhile, has marched in lockstep with the Congress in "cracking down" on crime, by eviscerating protections for defendants that also served to keep law enforcement honest. Perhaps most egregious was the high court's decision that the withholding by prosecutors of potentially exculpatory material could be a "harmless error" rather than a factor that would doom a prosecution.
But if Congress and the courts have contributed to a climate in which prosecutors try to "win at all costs," it is the Justice Department and its understaffed Office of Professional Responsibility that deserve the bulk of the blame for the abuses documented by the Post-Gazette.
And while Congress shows signs of recognizing that the prosecution too often becomes persecution, the Justice Department shows precious little awareness that many of its operatives are running roughshod over the rights of citizens. We await a significant and sustained response to the series by Attorney General Janet Reno and her lieutenants. Early indications are, alas, that the department doesn't recognize the magnitude of the problem.
Responding to the Post-Gazette series, Mary Jo White, U.S. attorney for the Southern District of New York, pointed out that thousands of federal cases have been pursued without any charge of misconduct.
No doubt, but Mr. Moushey's investigation of 1,500 allegations of abuse suggests that, while wrongdoing occurs in a minority of cases, it is a sizable minority and one that seems to be growing.
Reasonable people can disagree about the precise remedies for these abuses (and we will address specific alternatives in future editorials). But at the minimum, victims of prosecutorial misconduct should be able to collect significant damages. Complaints to OPR should not be entombed in bureaucratic silence; the agency should provide specific accounts of the disposition of these complaints and whether - and how - the wrongdoers were punished.
And while an independent oversight board for prosecutors might be unwieldy or subject to political pressure, Justice Department officials who oppose the creation of such a body have the burden of demonstrating that they can be trusted to prevent and punish lapses on their own.
The reaction across the nation to the Post-Gazette series strengthens our conviction that prosecutors who bend and even break the law are not an isolated occurrence. If the Justice Department doesn't act on its own to curb abuses, increase accountability and own up to its injustices, Congress will - and should - step in.
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Knowingly or negligently allowed the use of false testimony to secure convictions, spawning a jailhouse industry in which criminals obtain leniency for themselves - "jumping on the bus" to freedom - with information they have bought about cases in which they had no role.