Jonathan points to news stories and a NYT editorial about former prosecutor (and former judge and former lawyer) Kenneth Anderson serving 10 days for prosecutorial misconduct. I wanted to point out something different, however. A quick Google search reveals that Kenneth Andersons are a really bad group of people. Apparently we Kenneth Andersons are prone to child molestation, prosecutorial misconduct, armed robbery, drug dealing, and a long list of other nasty things. I didn’t see anyone at the top of the Google search, after all, who was getting canonized for saintliness or receiving the Congressional medal of honor. Sure, there have been some great Kenneth Andersons over time – the Indian tiger hunter-turned-conservationist, a WWII British general (not sure he was so great as a strategist, however), a highly regarded bass-baritone in the tradition of African-American gospel music, a star quarterback for the Cincinnati Bengals, a great Harvard cancer researcher, and so on. But on a day to day basis, we Kenneth Andersons are evidently a pretty bad lot.
(I’m not making light of the misconduct here, by the way – like Jonathan, I find it genuinely shocking and I agree with the Times that 10 days is far too little time. Moreover, I agree with Glenn Reynolds, my colleague Angela Davis, and others who think not just that prosecutors are essentially unaccountable for violations of rights – we have gone much, much further than that. Criminalizing pretty much everything and practically everyone for something, however vague, while allowing unfettered prosecutorial discretion to prosecute, largely unsupervised forfeiture, and the coercive power of unsupervised plea bargains, criminal justice has been outsourced from judges to prosecutors, their discretion and their consciences. There are many fine and honest prosecutors, of course, but as a system of justice, we should not have to rely on their discretion.)