"Is progressive prosecution a distant dream? The pandemic has created a modus vivendi on mass release of prisoners out of concern for public health. But we are yet to see the optimism the pandemic has brought in is to last long".
American criminal defense attorney, Prof. Abbe Smith once famously remarked that a prosecutor cannot be both a good person and a good prosecutor at the same time. But on the contrary, the recent trends in the criminal justice reform debates in America points to the potential the 21st century ''progressive prosecutors'' carry in themselves to reform the justice system substantially from within. The new face of prosecution, the progressive prosecution model is gaining traction in the United States as more and more progressive prosecutors are winning elections across major cities in America. It is focused on creating a smaller, more humane and less severe criminal justice system. The U.S. has an adversarial legal system, but, interestingly, district attorneys who are the state prosecutors there, are elected by voters at an election. U.S. is the only country in the world which elects their prosecutors. This among many other facets of America's penal exceptionalism diverges starkly from other jurisdictions, and the fact that America has its own problems of racism entangled in its criminal justice system, certainly makes comparative criminal justice policy research harder to a significant degree. But, the new progressive prosecution movement is proving to be a promising model for worldwide criminal justice system reforms. The key idea behind progressive prosecution is that prosecutors should see that justice be done both to the victims of crimes and the accused equally, fairly and impartially. It seeks truth and justice, not convictions. Progressive prosecutors push against retributive justice and advocates restorative justice. They are committed to repairing and humanizing the broken justice system by shrinking mass incarceration reaching epidemic levels, and looking for alternative ways to address the underlying causes of crimes as part of their decarceration policy. They defy the win-at-all costs, tough-on-crime prosecutorial approach in securing convictions and call to end long and overly punitive sentencing policies which do not serve the interests of justice, and that of communities. This blog intends to highlight some of the positive insights the American progressive prosecutorial model has to offer to the criminal justice reform conversation, wherever that happens.
Prosecutors as a check against police misconduct and irregularities of investigations.
Prosecutors hold a public office vested with breathtaking powers. They act as a representative of the state in exercising the state's inherent power to afflict punishment on criminals. Prosecutors play a significant role in the system of checks and balances placed against the the acts of legislature and police which is a peer agency in the executive arm. Checks and balances in the criminal justice system are essential for separation of powers between multitude of stakeholders including legislature, police, prosecutors, the judiciary and the public. Police make arrests and investigate crimes. Prosecutors act on the legislative mandate given to them by the legislature to prosecute the accused with charges framed by the police. Judges would exercise their judicial discretion after hearing the prosecution and defense. Regarding judicial discretion, progressive prosecutors lament that mandatory sentences imposed by statutes unnecessarily curtail the judicial discretion available to trial judges and unduly restrict the exercise of lenience. For instance, an offence under the Offences against public property Act attracts a minimum mandatory sentence of 1 year imprisonment. However, with new sentencing policies judges are empowered to impose a lesser sentence or suspend the sentence despite there being a minimum mandatory sentence.
Progressive prosecutors are changing the broken justice system from within.
The progressive prosecution movement has embraced a new phenomenon in recent years that it believes the very, discretionary, accumulated prosecutorial power that they accuse of largely being responsible for mass incarceration and unequal power dynamics in the criminal justice system, when exercised progressively, would hold the key to decarcerate our prisons and solve many other problems. This can be realized only when prosecutors start to act progressively and stop chasing after convictions ruthlessly and start seeking justice for both the accused and victim. Thus, what the progressive prosecution movement pictures is a changed tone of prosecution, simply a prosecutor-driven or a prosecutor-centered criminal justice reform initiative aiming for less incarceration and less crimes. Only a self-made progressive prosecutor alone can dethrone the prosecutor-king, prosecutor-dominant narrative in courts. A simple example of progressive prosecution would be where a prosecutor would not unduly object to granting bail to an accused. We often witness police who act as the prosecutor in minor offences before Magistrate Courts unreasonably objecting to bail on grounds of possibility of a public disquiet or a possible public reaction to the offence if bail is granted. Just as prosecutors who jump on the tough-on-crime bandwagon drives up mass incarceration, progressive prosecutors who embrace more humane, lenient approach can roll back over incarceration rates.
Where progressive prosecutors are looking at?
Progressive prosecutors have set three main goals in their collective effort to reform the justice system'; reducing mass incarceration, changing the tone of prosecution and non-prosecution of low-level offences such as prostitution, minor drug offences, shoplifting. Progressive prosecutors believe that police and prosecutors should take 'education over enforcement approach' in fighting crimes and resort to arrests only where it is absolutely necessary. Police can warn minor offenders instead of arresting them. Prosecutors can refrain from pursuing a charge if facts are insufficient. Reducing pre-trial detention is one of the major objectives of their agenda. Alternatives to incarceration such as diversion programs, taking judicial note of mental condition of the accused before trial and establishing specialty courts to prevent delay of trials are some of the other goals progressive prosecutors are aiming at. Refraining from seeking disproportionately long sentences contributes largely in changing the ruthless tone of prosecution into a lenient one. Open file discovery policies are one other major policy concern in the progressive prosecution agenda. Progressive prosecutors also endeavor to end the frequent practice of coercive plea bargaining. Abolishing legislative recognition of death penalty and ending cash bail system are also other major priorities of the progressive prosecution movement.
Prosecutors are not to secure convictions, but to do justice for all alike.
The fundamental duty of prosecutors to apply laws and facts to administer justice fairly and impartially, is just as important as the state's obligation to administer justice at all. Winning a case or merely securing a conviction is not the sole duty of prosecutors. A win for prosecutor in fact means doing justice to victims and defense alike. Prosecutors carries the conflicting responsibility of doing justice and securing convictions. There's a popular yet wise Carl Sandburg quote: "when facts are against you then argue the law, and when the laws are against you, then argue the facts, and when both facts and laws are against you, you should pound the table and yell like hell". This reminds us of the extraordinary, discretionary prosecutorial power to enter a nolle prosequi, one which is rarely resorted to in practice, only if the public interests so demand. Nolle prosequi is an order issued either orally or in writing under the hand of the Attorney General who is the principal law officer in Sri Lanka representing the republic, to the effect that indictment against the accused shall be withdrawn staying the proceedings and discharging the accused. In terms of section 194(1) of the CCRP, a nolle prosequi can be entered at the discretion of Attorney General only in respect of high court trials before a verdict is returned, and no reason has to be assigned for the decision to not to further prosecute an accused. Thus, a prosecutor can easily dismiss a case for lack of sufficient evidence with just a stroke of a pen. However, it is important to note that it is only the Attorney General who can withdraw an indictment, no other subordinate officer in the department can exercise that right. Nevertheless a provision has been made in in section 194 (2) of the CCRP, allowing prosecutors, any state counsel for that matter, to withdraw an indictment with the consent of the trial judge at any stage of trial before the return of the verdict. Progressive prosecutors, however, warn that powers of nolle prosequi should not be misused as a form of plea bargaining. Progressive prosecutors when faced with cases where there is a dearth of sufficiently incriminating material against the accused, must take the progressive step of withdrawing the case, rather than trying to enmesh the accused in a charge he cannot eventually be found guilty of. It saves court's valuable time and eliminating any collateral negative consequences for the accused such as losing employment and other financial burdens associated with the case. But since there is no similar provision to withdraw charges in summary offences tried before a Magistrate and the bulk of cases tried in Magistrates courts are prosecuted by police officers who make the arrests and investigate charges, it is very unlikely that charges would be withdrawn by the prosecution. Police are assisted only on occasion by state counsels. Therefore in most cases, misconduct of police in making unnecessary arrests and irregularities in police investigations cannot be subjected to any checks and rectified at the initial pre-trial stages. Thus it is only the judicial discretion of trial judge exercised after round of examinations which could save the accused eventually. We wouldn't need a sledge hammer to undo a wrong, if prosecutors could have nipped it in the bud at the pre-trial stage.
Usually neither police nor state counsels would present exculpatory evidence, if any discovered in the process of investigating a crime. In the absence of exculpatory evidence, neither a fair trial nor a level playing field can be ensured to an accused who is, as a result, most likely to be wrongfully convicted. Progressive prosecutors, on the contrary, in an effort to end unjustifiable prosecutions would select only provable charges. Before proceeding to prosecute an accused with a particular charge, they would compare and contrast the gravity of the offences, the severity and moral appropriateness of the prescribed penalties and consider the consequences for the community interests. They would unhesitantly present exculpatory evidence with the same force and enthusiasm just as they adduce incriminating evidence. However, one should not misunderstand progressive prosecutors as taking the role of defense attorneys and usurping the powers of judges when they present exculpatory evidence and decide the moral appropriateness of penalties. Progressive prosecutors in fact still prosecute aggressively, but with different priorities such as fundamental notions of justice, mercy and fairness.
The case of undertrials and overcrowding of prisons.
The case of remand prisoners is a fertile ground for criminal justice reform debates. Out of concern for increasing percentage of remand prisoners in prison populations and degrading conditions of prisons, progressive prosecutors call to eliminate the cash bail system which accounts for a significant portion of remand prisoners who languish in remand custody for non-violent, low -level offences over their inability to furnish bail. Poor undertrials who cannot afford to furnish bail end up in remand prisons, and progressive prosecutors argue that there is no rationale in locking up people who do not pose a threat to safety of communities for the mere reason that they don't have financial means to furnish bail. Cash bail is costlier than we think for it has unintended devastating collateral consequences to remandees who are as a result likely to lose housing, employment and suffer societal shame and family separation. It is also a leading cause for overcrowding of prisons. Let's take the case of a person stricken by poverty, out of hunger stealing a coconut or a number of coconuts for that matter from his neighbor's garden. Obviously someone of that dire financial circumstances would not be able to furnish a cash bail. Progressive prosecutors perceive the cash bail system as a leeway the wealthy use to escape from the justice system, while the poor offenders who are unable to furnish cash bail would be filtered in and sent into remand custody. Obviously, the wealthy who can afford spend less time in remand than their indigent counterparts. For the above reasons, progressive prosecutors see cash bail system as an overly punitive dynamic of the criminal justice system which punishes poverty.
Full and open discovery policy for equal power dynamics.
Open file discovery laws are what creates a level-playing field for prosecution and defense, the absence of which is the main cause behind inherently unequal power arrangement between parties to a criminal action. Discovery laws facilitate the legal process of exchanging evidence between state and defense prior to the trail. Unlike in civil litigation, the criminal discovery process does not offer broader discovery rights to an accused to access witness statements and police reports. In terms of section 444(1) of the CCRP, an accused is entitled only to a certified copy of first information and any statement made to the police by the victim or complainant against whom the offence is alleged to have been committed. These information are given to an accused only if he or his defense counsel applies for it. Defense is not entitled to obtain before trial copies of witness statements, accused's statement, witness lists, expert evidence reports, scene visit reports and other police reports.
Progressive prosecutors believe that prosecutors should not fear more information in the hands of defense and they must proactively discover exculpatory evidence and irregularities in police investigations, if any, and make them available to the perusal of the defense at the pre-trial stage. Progressive prosecutors would not withhold exculpatory evidence from the courts. Full and open discovery allows the defense to mount a proper defense. Greater and equal access to ascertain facts and evidence against an accused through expanded discovery laws increases the reliability of the outcome of trials and reduces the likelihood of wrongful convictions. Progressives believe expanded discovery to be low cost and high benefit policy which reduces cost of appeals in overturning wrongful convictions and which increases public confidence in the criminal justice system.
Coercive plea bargains should be stopped.
Coercive plea bargaining is an accepted practice in the criminal justice system of Sri Lanka. An example of plea bargaining would be where an accused is indicted for theft of public property under section 3 of the Offences Against Public Property Act No.12 of 1982 as amended and he is willing to plead guilty for the lesser offence of theft under section 367 of the Penal Code. In terms of the Offences Against Public Property Act, any person charged under the Act should be kept in remand custody and cannot be released on bail except under exceptional circumstances. If prosecution senses that facts are not sufficient to prove a charge of theft of public property beyond reasonable doubt, it would offer a plea bargain to the accused in kept remand, and if the accused accepts the offer and pleads guilty to the charge of theft, he would be granted bail and would walk out with a fine alone and would not even attract a sentence.
Prosecutors resort to forcing plea bargains on accused and threaten them with adding more charges in case they refuse plea bargains. This is usually done in an attempt to clear mounting dockets. Progressive prosecutors strongly condemn such prosecutorial practices and believes that prosecutors should not offer plea bargains in exchange for ending remand custodial status of the accused. If facts are at odds with possibility of securing a conviction against certain charges and where accused kept in remand are not deemed a threat to community, prosecutors should refrain from forcing guilty pleas on accused in exchange for freedom.
Eliciting bad character evidence not so progressive.
Prosecutors are in the practice of eliciting prejudicial, irrelevant prior criminal conduct of the accused during cross-examinations and thus finds a way to creep bad character of accused into the case record. This is extremely prejudicial to the accused's interests and his right to fair trial. However this has been addressed by provisions in the section 54 of the Evidence Ordinance which casts a paramount duty on judges to exclude bad character evidence unless accused himself has volunteered to adduce his good character. However prosecutors unhesitantly engage in the practice of adducing bad character of the accused to influence the attitude of judges towards the accused.
Although death penalty has not been implemented in Sri Lanka since 1976, that has not stopped prosecutors from seeking death penalty for certain offences under several statutes including the Penal Code(ss 114,129,191,296,299), the Poisons, Opium and Dangerous Drug Ordinance Act No 13 of 1984(Section 54 A read with the third schedule of the Ordinance), and the Firearms Ordinance 33 of 1916(schedule C’ of the Ordinance). Possession or trafficking of over 2 grams heroin account for the highest number of convictions to death in Sri Lanka. Progressive prosecutors who puts more emphasis on restorative justice call for abolishing legislative or statutory recognition of death penalty.
Is progressive prosecution a distant dream?
Despite the promising signs of the progressive prosecution movement molding itself into an effective criminal justice reform initiative, there is a strong growing backlash against it that its overtly lenient approach towards criminals inevitably encourages crimes. The U.S. Attorney General William Barr perceives the progressive prosecution movement as a threat to public safety which portends more crimes and more victims. However, at a time when the goals advocated by progressive prosecution much of which remained unthinkable and unrealistic until now, became a practical reality during the pandemic with mass release of prisoners, the movement garnered new supporters. The pandemic has created a modus vivendi on mass release of prisoners out of concern for public health. But we are yet to see the optimism the pandemic has brought in is to last long. Much of the survival and appeal of the progressive prosecution movement in a post-pandemic future will depend on whether mass releases trigger an uptick in crimes.
Something is better than nothing.
In recent times prosecutors have been at the receiving end of increasing attention as stakeholders in the criminal justice system and pressure groups kept calling for lenient prosecutorial approach towards remand prisoners awaiting their trials for minor offences, specially minor drug offenders. A series of circulars was issued by the Attorney General to the Inspector General of Police, setting out guidelines to be followed in granting bail to minor drug offenders charged with possession of less than 2 grams of heroin. Circulars were issued to address the issue of overcrowding of prisons and to ensure well-being of prisoners. Sri Lanka has an incarceration rate of 114.7 rate per 100,000 population and overcrowding in prisons has been a serious issue for years, and the problem was aggravated particularly during the pandemic when prisons exceeded their capacity by 173%. Unfortunately attempts to end mass caging of remand prisoners failed to secure support from judges and police.
The way forward.
Prosecutors are the vanguards of the constitutionally guaranteed right of the accused to due process, and must act as a check against police misconduct and irregularities of investigations in conducting the prosecution of cases. The open-minded, progressive prosecutors do not measure their success by securing higher conviction rates, they always see that justice is served fairly and impartially. This is the gist of the progressive prosecution model; justice for all alike no matter what. This new mold of prosecutors emerging with the progressive prosecutorial ideology believes that it is timely for the criminal justice system in its response to increasing crimes and recidivism to move beyond mass incarceration and look for more progressive, humane and compassionate alternatives to address the real root causes behind crimes and fear of crimes. Hopefully much of the challenges our criminal justice systems are facing will be solved gradually once prosecutors adopt a progressive mindset and start prosecuting aggressively for justice and fairness.
For the reader.
We all live in a society which innately takes a tough-on-crime approach. Yet, mass prosecuting and mass caging of perpetrators haven't reduced crimes. And we as communities continue to live in constant fear of crimes. Therefore, should we reconsider our approach and move away from being 'tough' to 'smart' in the fight against increasing crimes? Once we make that choice, it's just a matter of allocating our limited resources to different channels such as rehabilitation and diversion programs and creating specialty courts to achieve the same cause of reducing crimes, but in a more compassionate and humane way. In the tough v smart debate, where do your views fit in?
Please feel free to share your thoughts and comments down below.
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