The Tainted Federal Prosecutor in anOvercriminalized Justice System

I. IntroductionProsecutors have enormous discretion in the criminal justice system.1 They decide whether to proceed with a prosecution and then select the charges filed against individuals accused of committing crimes.2 Their discretion is heightened by the fact that there are over four thousand federal criminal statutes.3 Federal prosecutors also play a crucial role in the plea bargaining process,4 a method that resolves approximately ninety-five percent of the cases5 in the federal criminal justice system. The role of federal prosecutors in sentencing matters has varied over time,6 but here too they have a significant role, as only prosecutors can offer a sentencing reduction for cooperation.7 They also make sentencing recommendations to the court8 and select the initial charges against the accused9 that will ultimately serve as the basis for sentencing once a conviction is obtained.Although the Constitution and federal statutes serve as limits, the discretion afforded to prosecutors is huge.10 They are guided by internal guidelines that provide advice on an array of substantive and procedural matters.11 Ethically they serve as "minister[s] of justice"12 in enforcing laws passed by Congress, as opposed to being mere advocates in the criminal justice system.13 And as federal employees they are non-political once they commence their role with the Department of Justice (DOJ).14The reality, however, is that internal guidelines have no force at law15 and recently politics have improperly entered several areas within the DOJ. Three recent joint reports issued by the DOJ's Office of Professional Responsibility (OPR) and Office of Inspector General (OIG) provide ample evidence of politicization in the DOJ. These reports, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General (Goodling Report),16 An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (Honors Program/SLIP Report)?1 and An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division (Civil Rights Report f% all provide a sharp contrast to the history and tradition of a nonpolitical DOJ.19Commentators and scholars have reflected on the infiltration of politics into the justice system20 with discussions that look at different solutions to the problem, such as removal of the Senate confirmation process for U.S. Attorneys, redefining the role of prosecutors in the federal system, and "restrictions on contact between U.S. Attorneys and political officials."21 Some have called for the indictments of those who engaged in political activity.22 Others have focused on the "firings" of U.S. Attorneys in examining the allocation of prosecutorial power.23This Article looks at politicization in the DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in the DOJ.24 Overcriminalization,25 the breadth of many criminal statutes,26 the increased absence of mens rea requirements in criminal offenses,27 and the ability of prosecutors to use "short-cut" offenses to proceed with charges with relatively little proof28 raise concerns when the individuals making the decisions may appear biased. Instead of focusing only on ways to alleviate politicization in the federal criminal justice system, the focus also needs to be on examining structural changes in the DOJ that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor's personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decision-making would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers. …