Discretion and Probable Cause

20 Jul Discretion and Probable Cause

I recently came across a book entitled Three Felonies a Day: How the Feds Target the Innocent, by Harvey Silverglate. While the premise is provocative—you or I could unwittingly be committing numerous felonies every day—it turns out that the book doesn’t deliver on the promise. Silverglate wants to show that federal statutes and regulations are dangerously vague and/or overbroad, and that there are too many of them to boot, a scenario right out of a libertarian fever dream. But what follows to prove these premises are a series of anecdotes of clearly culpable conduct.

Silverglate focuses on the wrong culprit, but the title of the book, as well as the undelivered-on promise, resonates because of the real concerns raised by prosecutorial discretion, as well as police investigative conduct.

Rather than worrying about vague federal crimes, we should be concerned with how state prosecutors, police, and investigators turn otherwise reasonable statutes into overbroad nightmares in practice.

Here’s an example of how it happens. Assume the following facts: the defendant is arrested for DWI. The police handcuff him facedown on the pavement, and as the police officer walks around the defendant, he stumbles over the defendant’s foot. Inevitably, the defendant is charged with assault on a public servant, a third degree felony for which he can receive 2 to 10 years in prison and a $10,000 fine.

Here’s the rub. Any police video is unlikely to be helpful; it will likely show the police officer stumbling, but be insufficiently clear to show that the defendant remained still and the police officer tripped through his own haste or carelessness. Thus, the case if tried will be a swearing match between the defendant and the arresting officer (or officers). We can guess who the jury will believe.

The elements of assault in this case would be:

(1) the defendant

(2) intentionally, knowingly, or recklessly

(3) caused bodily injury

(4) to a person the defendant knew to be a police officer

More problematically, bodily injury is defined as physical pain. In short, if a police officer trips over a suspect and feels pain, that suspect is likely to face 2 to 10 years in prison, as well as a substantial fine. Here is where overbreadth comes in. Under the terms of the statute, even if the police officer only scrapes his elbow (or doesn’t scrape it but merely feels some pain), that warrants 10 years in prison.

What happens next? The innocent suspect (now a defendant) pleads guilty to the crime, receives probation, and hopes he can stay out of trouble, because even though he is innocent he and his lawyer know going to trial is too risky.

If the police officer trips, and assumes that the suspect tripped him, rather than that he tripped by accident, there is nothing to prevent him from making sure the defendant receives probation if not prison.

Similarly, even if the officer knows he tripped, there is no institutional check to prevent him from saying the defendant tripped him.

Particularly surprising is the common attitude of prosecutors in this situation. In order to bring charges, the prosecutor must determine that there exists probable cause to believe an offense has been committed, for which the question is something like “are there sufficient facts to cause a reasonable person to believe a crime has been committed.” Under these facts, there is no way to know one way or another. The prosecutor has no prima facie reason to believe or disbelieve the defendant’s story or the police officer’s. But the prosecutor does have institutional reasons to believe the police officer; disbelieving the officer would create mistrust among parties who are supposed to be on the same side, and who have incentives to foster positive working relationships with each other. So prosecutors give the police officer the benefit of the doubt.

This method of proceeding conflates the initial probable cause question, which prosecutors have an ethical duty to consider under Texas Disciplinary Rule of Professional Conduct 3.09(a), and the final question of reasonable doubt, which burden the prosecutor must meet at trial. Here is part one of the problem of prosecutorial discretion. Prosecutors can claim probable cause, and neither the judges nor the disciplinary rules place sufficient checks on them not to do so under circumstances such as those outlined above.

Additionally, prosecutors seem willing to charge everything they can, instead of determining that a scrape or less fails to warrant prosecution, even if caused intentionally. This is part two of the problem of prosecutorial discretion

The general observation is not new, of course. People have been aware for some time that police and prosecutorial discretion is a dangerous thing. Yet it seems that we’re still unwilling or unable to do anything about it.