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Comment by downandout | Hacker News Reader

If they are concerned enough about unnecessarily ruining lives to change the Miranda warning, why not focus more on exercising the most powerful tool we have in our criminal justice system: prosecutorial discretion? After all, the cops reading the Miranda warning can only bring people to jail; it’s the prosecutors that keep them there.

Prosecutors have the ability to not file cases at all. They also have the ability to offer diversion programs, wherein accused criminals can voluntarily agree to community-based sanctions/supervision in exchange for their cases not being filed. These do exist in some jurisdictions today, but tend to be offered to a very small percentage of defendants.

In short: if they really cared about ruining lives, they’d stop trying so hard to ruin lives (in all but the most serious cases). Changing the Miranda warning may be a very small step forward, but getting prosecutors on board is the only way to make a real difference.

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King County is already using prosecutorial discretion to reduce the number of criminal prosecutions that lead to jail and have been for some time.

Not claiming that we shouldn't do more work here but the Miranda warning changes are in tandem with other improvements here.

https://www.seattletimes.com/seattle-news/crime/in-king-coun...

Mine was a more of a blanket statement for the entire country. In most jurisdictions, prosecutors are as vicious as the law allows them to be.

They are vicious because they are incentivized to be so, their success is determined by their prosecution rate. If you incentivize good people to do bad things they will do bad things. The question is, what other metric can you measure them by to determine how "successful" they are?

EDIT: grammars

Is it possible that metrics are a bad way to determine success relative to actually looking into and understanding the situation? The latter is certainly more work. The former is certainly a lower resolution understanding.

Are we certain that any metrics communicate anything meaningful about "successful" performance in the realm of prosecution?

There are obviously better ways to judge a public servant's performance than a handful of decontextualized numbers — but unless you're going to force people to take a test before they can vote (which, umm…), what criteria are best doesn't matter as much as what criteria are most easily communicated.

No one ever got fired for buying IBM, nor for prosecuting someone. They have been fired though, for buying a cheaper solution, or for exercising discretion. Look at what happened to Dukakis...

King County (especially Redmond/Bellevue, home of Amazon and Microsoft) is one of the wealthiest, low-crime areas in the country; I remember someone telling me that Redmond has the highest density of millionaires in the country.

If anything, King County's judicial system doesn't need this kind of help, yet I saw the high budget of the police force when I lived there a block away from the station with its top-of-the-line equipment, education programs, and community involvement. We should be trying to bring this kind of judicial reform and fairness to areas that really need like it like the south-side of Chicago, where there are at least two murders a day.

Couldn't you frame this as, "Kudos, King County, this is a great thing that will help improve the lives of people in King County. Let's try to get it in Chicago, where there are even bigger gains to be made."?

I've noticed this is an unfortunately common trope on HN.

"If they actually cared about X, they'd Y!"

I think what you mean to say is: "If they really cared about X, and only X, and had no political/financial/strategic impediments, they'd do Y! Therefore they clearly don't care about X."

Let's not have the perfect be the enemy of the good. This is a good thing, let's encourage more of it, yeah?

To quote another comment "prosecutors are as vicious as the law allows them to be".

That's their job.

* Legislators create the law. (legislative branch)

* Prosecutors sue for enforcement of the law. (executive branch)

* Judgement to use JUDGEment in applying the law. (judical branch)

If you have sucky laws or indescriminate judges, fix those. Don't cast dispersions on prosecutors for prosecuting laws they didn't write, for sentences they don't make.

Not maintaining the balance of powers is how you wind up with out-of-whack and mismanaged governments.

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EDIT: Prosecutors are the inverse of defense attornies. Why is the DA defending this scumbag of a human being?!?! Because that's their job: provide the best possible defense for accused criminals. Likewise, prosecutors provide the best possible prosecution. Denegrating either one for their role is misunderstanding their functions in the judical system.

Be careful though, this is an easy argument into "just following orders." Which, nobody should ever be comfortable with that argument.

That's fair.

That said, if we're focusing on the most effective change like downandout, we should be changing the orders, not expecting each person to each adjust them, hopefully in appropriate ways.

Depends on efficiency measure. In both cases, you have to train enforcement on proper enforcement. So, really, you don't save much. (Any?)

It is idealistic to think you can make perfect laws that are easily understood by anyone such that training isn't necessary.

And most importantly they should understood by judges.

No, this is a distinct argument. It's that this system was designed to function best when everyone does their jobs. Attorneys in the US are supposed to be zealous advocates. The judge and jury don't know going in whether the person did it or not, but the hope is that if the prosecutor fights their hardest (even if the accused is innocent) and the defense attorney fights their hardest (even if their client is guilty) that hopefully ultimately the one that comes out ahead will be the one that's right. It's not a perfect system, but this is how it's meant to work.

That is the exact same argument. Just instead of "lawyer" pick "any government job."

And be clear that was never the case. Prosecutorial discretion is and has almost always been the case.

I could just as easily claim that attorneys in the US are supposed to be about upholding the spirit, as much as the letter, of the law.

It's the same argument. Someone created a system and I'm just doing my assigned part to keep it going without having to decide if it's a good system or not == just following orders.

The system wasn't "designed" in any such manner. The system is the sum of myriad accretions of laws and precedent over the course of centuries. This idea that there is a design with a purpose for which anything is meant reminds us of the "intelligent design" take on biological evolution. In this case, however, the history is clearly written in records recorded in English at the time that each such accretion took place, rather than locked up in obscure geologic formations.

Prosecutors are as vicious as the people who elect them.

Or to be more exact it's very hard for a DA to be elected when they appear to be lenient on crime.

The prosecution and the policing parts of the criminal justice system can quite easily be influenced through the popular vote.

And that's at the heart of all these problems. People are vicious, especially when they're in large groups making decisions that they don't need to feel even remotely accountable for. Oddly enough, I'm not trying to make a small-government or anti-democracy point in general: this is probably the least vicious we as a species have managed to make ourselves behave.

This is not unavoidable, but a specific aspect of America's incarnation of the adversarial system. In plenty of other jurisdictions, prosecutors have a more neutral, quasi-judicial role, where – especially during the investigative phase of a case – they are required to act more like French examining magistrates. In some jurisdictions, prosecutors can even have an affirmative duty to act on the behalf of the defendant if they believe that the defendant is not receiving a fair trial.

There are also pragmatic issues; prosecutorial accountability matters even in adversarial systems (accountability not in the sense of dealing with prosecutorial misconduct, but to ensure that prosecutors act consistently and in the public interest). Prosecutors aren't or shouldn't be free agents.

Even in an adversarial system, the point of prosecutors is not to be "as vicious as the law allows them to be". The point is to pursue actual crime as vigorously as they can. Instead, we are seeing repeated instances of prosecutorial misconduct where the prosecutor's office tries to win the case on a legal technicality, even when it's actually counter to the basic goal of justice (i.e. establishing the truth of charges) - by, for example, trying to place procedural hurdles in the way of procedures, like DNA tests, that might exonerate the defendant, or withholding evidence that might indicate innocence, but which the prosecutor is not legally obligated to introduce. Here's a recent example:

https://www.washingtonpost.com/news/the-watch/wp/2017/09/25/...

There's absolutely no social good coming out of such behavior, and it should be pointed out and castigated.

And yes, this does, in fact, happen, because prosecutors are effectively rewarded for successful prosecutions, regardless of the false positive rate.

> prosecutor's office tries to win the case on a legal technicality

Curious: By that token, how do you feel about DA's trying to win cases on legal technicalities. Are they living up to the expectations of their job?

“It is better that ten guilty persons escape, than that one innocent suffer.”

I don't think there needs to be parity between the prosecution and defense in this matter. Those technicalities on the defense side serve to help protect the rights of the accused, while on the prosecution side they just obscure the truth of the matter.

No, being vicious is not their job, despite the fact that most of them think that it is their job and conduct themselves accordingly. Rather, the responsibility of a prosecutor is to seek justice - that means pursuing appropriate, reasonable outcomes based upon specific conduct and evidence in each case. It does not mean intimidating witnesses, manufacturing evidence, overcharging defendants so that they plead guilty lest they face decades in prison for relatively minor criminal infractions, and all of the other evil things that many prosecutors do. These things are a perversion of justice, engaged in by evil, selfish people looking for personal career advancement by inflicting misery on others at taxpayer expense.

A prosecutors job is not to convict as many people as possible. This would suggest going after minor crimes where the cases are short vs. major crimes which takes more effort.

Their job is to see justice for the harm to society which is not benefited by sending innocent people to prison.

Don't fix prosecutors, fix judges!

Where do you think judges come from? A judge who doesn't believe all the bullshit that prosecutors believe, is a rare judge indeed.

Until they remove career-advancing incentives for prosecutors that are tied to case outcomes and numbers of filings, this probably won't happen.

And since CA is the example: you also remove the prosecutorial discretion when you codify things like mandatory minimum sentences.

Ummm....WA actually, as in Seattle. But you're still not wrong since we have mandatory minimums here as well.

> Ummm....WA actually, as in Seattle.

Give it a few more years...

And then we'll be CA for Cascadia, the newest Canadian province!

I agree with you, but there is something that most people aren't aware of: if you're booked into a jail, that record stays with you forever, regardless of whether you are formally charged or not. I think that is what they're trying to prevent by this measure, which is absolutely amazing.

Other good things: if police don't think they can make a good enough case, it will free them up to focus on more serious crimes. Youth won't be placed in the same holding cell as rapists, murderers etc. Less public resources spent on keeping people in jail.

It used to be when you were filling out job applications, you'd get asked if you were ever convicted of any felonies or misdemeanors.

I've seen on more than a few applications in the last couple years, the question has changed to "have you ever been arrested for or convicted of any felonies or misdemeanors?"

Scary stuff. Once you've been booked, you might as well be guilty.

Because of the way our criminal justice system works employers should not be able to ask this question. If they want to ask about convictions that's fine but accusations is unreasonable.

They should also fix the bail system.

http://www.slate.com/articles/news_and_politics/crime/2015/0...

Prosecutorial discretion is only that important because the rest of the criminal justice system (including the laws themselves) is so broken.

A truly healthy system would not allow an overzealous DA to get far.

Absolutely, there is a great Ezra Klein show podcast on this topic, I would recommend everyone listen. I'm on mobile so can't link but if you search "Ezra Klein show prosecutor discretion" it should come up.

This one?

https://soundcloud.com/ezra-klein-show/why-prosecutors-not-c...

Yes! This was an extremely enlightening listen.

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