Bazelon discusses changing legal landscapes

The increasingly political nature of prosecutors has transformed the country’s legal practices, journalist Emily Bazelon said in a lecture Wednesday.

Bazelon is a Senior Research Scholar and Lecturer in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School and a staff writer for the New York Times Magazine.

Bazelon noted how, after the general expansion of government administration capacity in the 1930s, the elected position of prosecutor began to evolve into a stepping-stone for a higher political office, citing Earl Warren, Robert F. Kennedy, Bill Clinton, Chris Christie and Rudy Giuliani as examples.

Bazelon said that when crime rates shot up in the 1960s and 1970s, the public backlash towards what she called a “very lenient” criminal justice system transformed the role of the prosecutor into one who is expected to be tough on crime.

This new political expectation of the prosecutor, Bazelon said, set the stage for the increasing incarceration rates that have now become a major source of debate in this year’s election.

20 years ago, Bazelon said, prosecutors brought felony charges against one out of three people who were arrested. By 2008, that figure rose to two out of every three people arrested.

“This is a huge jump and it accounts in the last 10 to 15 years for most of the rise in mass incarceration,” Bazelon said. “It’s not actually that people are spending more time in prison; it’s that more people are going to prison in the first place.”

Bazelon also said that the sharp decrease in trials in the past half-century can be attributed to the unmitigated growth in power of prosecutors. Citing a report, she noted a report that while one in twelve people facing felony charges went to trial in the 1970s, that rate has shrunk to just one in forty today. More than 95 percent of criminal cases are now resolved outside the courtroom through plea bargains, Bazelon said.

Commenting on these large-scale transformations, Bazelon voiced concerns about prosecutors’ power.

Bazelon shared the story of Joseph Buffey as a real-life example behind another statistic: that 10 percent of the roughly 1,800 exonerations that have occurred since 1989 have involved innocent people who had falsely plead guilty to a felony.

In 2001, Buffey falsely pleaded guilty to the rape and robbery of an elderly woman after heeding the advice of his lawyer — who had assumed he was guilty — that bringing the case to trial would result in an even harsher sentence. According to Bazelon, the DNA testing actually identified a different criminal than Buffey prior to his sentencing, but the prosecution prevented that information from reaching the side of the defense.

After that DNA testing was revealed 14 years later, the West Virginia Supreme Court of Appeals ruled that Buffey's constitutional rights were violated by the state's failure to turn over favorable DNA evidence and has since allowed him to withdraw his guilty plea.

Although the 1963 United States Supreme Court case Brady v. Maryland declared that the prosecution’s withholding of evidence violated due process of law, Bazelon said the case of Joseph Buffey demonstrated several holes in the Supreme Court ruling.

“Brady is an honor system in which essentially the prosecutors have all the cards,” Bazelon said.

While acknowledging that most prosecutors are very honorable and turn over as much information as possible to the defense, Bazelon said that this system still provides an incentive for prosecutors to cheat.

“If we live in a society in which we want prosecutors to solve crimes, in which we care about things like our conviction rates, in which we elect them based on the promises they make to be tough on crime, then the incentive to win is going to be really high,” Bazelon added.

She said that voters play a very important role in electing these prosecutors. Referring to recent shifts in Chicago, with Kim Foxx beating Anita Alvarez out for the state attorney position in March, Bazelon pushed for voters to judge prosecutors not on how “tough on crime” they are but on how their track record appears.

Bazelon finished her lecture with a comment on the disproportionate demographics of United States prosecutors, of which 79 percent are white men, 16 percent are white women, four percent are men of color and just one percent are women of color.

“If we don’t have progressive people as prosecutors then we’re really not going to change all that much in our criminal justice standard,” Bazelon said.

The lecture, titled “Criminal Justice Reform and the (Almost) Absolute Power of the American Prosecutor,” was sponsored by the University Program in Law and Public Affairs and took place in Robertson Hall at 4:30 p.m.