There is (justifiably) much talk in the blogosphere these days about how the firing fiasco scandal is effecting the “image” of the Department of Justice. But there’s really more to this than partisan political shenanigans. (Again, I don’t mean to downplay the importance of it; I’m just trying to talk about a bigger overall issue.)
Michael Powell’s New York Times article “J’accuse!,” addresses the problems that the 1980s federal sentencing “reforms” brought: namely, a sever lack of prosecutorial discretion. He quotes Professor Bruce Green, a former assistant federal prosecutor in New York and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law:
“There never used to be an imperative to bring the harshest charges or a particular sentence, and that meant a prosecutor could craft his own philosophy,” Mr. Green said. “Now you are instructed to bring the harshest charges, and seek the harshest sentence and that imposes a superficial consistency while demeaning a prosecutor’s real power.”
As stated in the Texas Code of Criminal Procedure, Article 2.01:
It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.
When the executive branch, be it the president for federal criminal law, or the governor for state criminal law, instructs its prosecutors to always seek the highest charge, and the highest penalty possible, they strip from a prosecutor their only real implement of justice: discretion.
(And, of course, they hit the taxpayer in the wallet, and guarantee jail and prison overcrowding.)