I submitted the following testimony to the Connecticut General Assembly in opposition to the so-called "Prosecutorial Accountability" act. The legislation is a solution to a problem that does not exist.
My name is Norman Pattis. I have represented people accused of crimes in Connecticut at both the state and federal level since 1993. I am the founder of Pattis & Smith, LLC, a small firm located in New Haven, Connecticut. I have handled thousands of criminal cases at the trial level, and I have appeared in appellate courts in several states, in federal appellate courts and in the United States Supreme Court.
I write in opposition to Raised Bill No. 1018, An Act Concerning Prosecutorial Accountability. It is my belief that passage of this bill will cause irreparable harm to the criminal justice system; it will eliminate necessary prosecutorial discretion to see that justice is done; it will impose significant costs on the criminal justice system; it will drive more the costs of legal services up for defendants relying on private counsel; it will create an administrative infrastructure that is unrelated to whether justice is done in individual cases; and, it will hurt individuals from disadvantaged communities.
The overwhelming majority of criminal cases charged at the state level are resolved by way of plea bargains. A plea bargain is a negotiated settlement, or agreement, between a prosecutor and the defendant. In these cases, neither party insists on their right to go to trial. Instead, the parties make complex, pragmatic decisions about whether to bear the risk and costs of trial. This is especially so in less serious cases, where the plea bargaining process is conducted in an “unsupervised” fashion, that is, without the direct participation of a judge. Many low-level cases can be resolved in a single court appearance.
Experienced practitioners in the criminal court develop a street sense of how much a charged crime is worth at the plea-bargaining phase. This is a function of the seriousness of the offense, the criminal history of the accused, the “market value” of an offense in a given community, and the personalities of the participants involved. These judgments cannot be reduced to a table, and they cannot be tabulated, systematized and made into a meaningful statistical report.
Federal judges, prosecutors and defense lawyers learned this the hard way in the 1980s, when Congress sought to limit judicial discretion in the imposition of criminal sentences by requiring participants to use a complex new tool – federal sentencing guidelines – to arrive at the appropriate sentence in a given case. The result was, and remains, that a typical federal sentencing requires the preparation of sentencing memorandum, detailed hearings before a judge, and hearings taking an hour or more at a minimum for even the least significant crime. The vast majority of criminal appeals taken after the creation of the guidelines involved sentencing decisions. The Supreme Court recently held that adherence to the guidelines is no longer mandatory, but the damage to the federal system has already been done. A system that moves a small fraction of the cases presented in the state courts moves at a snail’s pace. Yes, the federal system is awash in meaningless data, but the cost is enormous.
A prosecutor is not simply an advocate. Prosecutors are ministers or justice. They are expected to strike hard, but fair, blows in support of their cases. The best prosecutors realize that justice isn’t a numbers game. There is no recipe for justice. It truly is the case that all cases are unique. The adversarial system is intended and designed to bring prosecutors and defense counsel together in a principled clash governed by the rule of law. In the end, it is sometimes the case that a defendant with a long criminal record catches an enormous break, whereas a first-time offender receives a harsh sentence. The factors that support these results can be approximated, but not entirely captured by, collections of data. Holding prosecutors accountable for sometimes unpopular decisions in fora unrelated to a courtroom will bring the ethos of a lynch mob in the corridors of the courts. It is already the case that judges knowing they will soon face a retention hearing before this committee rule more harshly for fear of public backlash late in their terms, lest they appear before you only to have a victim cry out in rage. No one wants to stand beside the accused, or to justify a decision benefiting the accused, when running for office, or seeking reappointment. You know this to be true.
An act making prosecutors accountable and requiring them to create a data-driven justification for each critical decision they make in a case will lead them to act not in the name of justice, but in the name of self-preservation. It will take longer to resolve each case. That will result in greater backlogs, more trials, and increased expenses for all participants in the system. You will be asked to appropriate more funds for prosecutors, judges and public defenders. Fewer private lawyers will be willing to take a case for a few thousand dollars when it becomes clear that the bureaucratic impediments to resolving a case will require ten thousand dollars of work.
The great myriad of factors raised bill 1018 requires to be considered, tabulated and reported will transform even the simplest cases into a complex data-entry tasks. Prosecutors throughout the state are already struggling, many working extra hours daily to complete already extant reporting requirements while managing large case loads. They are doing this without requesting overtime pay. Requiring even more of an already over-burdened cadre of state employees will likely yield litigation and or increased salary demands in union negotiations.
The persons who will suffer most are, paradoxically, likely to be the persons this bill most wants to protect: members of disadvantaged communities. A young man of color with a lengthy criminal record is unlikely to catch a break from a prosecutor afraid of being second-guessed. Instead, a cautious prosecutor is likely to avoid making a difficult decision, deciding to avoid accountability and requiring jurors to make a decision. What, then, if the young man is convicted? Connecticut is a harsh sentencing state. Will you next consider a Judicial Accountability bill, asking judges to justify each and every decision they make by means of a similar matrix?
Soon enough we will repeat the mistake the federal system made when it adopted the federal sentencing guidelines. Each case will be mired in formal and procedural delay, a complex body of law will develop regarding the use and abuse of identified sentencing standards.
To what end?
The objective of the criminal law is clear: To set the minimum conditions of civilized conduct. A person is free to do whatsoever they like where the law is silent. But once they cross the threshold of what is prohibited by the criminal law, consequences follow. A person can be fined, their reputation ruined, they can lose their liberty, perhaps for a lifetime.
The work of the criminal courts is serious and profane. Those who work in the system know the weight of lives sometimes ruined by decisions that turn out to be wrong or misguided. We trust the professionalism of the lawyers and judges in the system to see to it that justice is done. No good cause has been shown to demonstrate why this bill is necessary. Today’s cry for a reckoning and accountability will become tomorrow’s demand for the flexibility to do impossible work free of fear and recrimination for exercising judgment in difficult situations.
One size doesn’t fit all. The standards of the Prosecutorial Accountability Bill are appropriate for an assembly line or a sausage factory, not for the halls of justice.
I am requesting that you reject this piece legislation. It will have consequences you do not intend.
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