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How the quality of mercy is strained

Prosecutorial discretion is a power jealously protected by prosecutors, who will tell stories about forgoing prosecution of 18-year-old guys for “rape” of their 17-year-old girlfriends, of not prosecuting people for technicalities when the equities demanded they violate those technicalities. It all sounds so decent and commonsensical.

That’s how people like Epstein go forever in safety, how Clinton escaped prosecution for the same acts that put others in prison regularly, how the Jussie Smollets of the world walk away from their troubles . . .

You don’t need to be that well connected to benefit. Bobby b, commenter of this parish, worked for a time as a criminal defence lawyer in the twin cities of Minneapolis / St. Paul.

In my relatively short crimdef career, I asked prosecutors to use that kind of discretion many times. It worked for the judge’s kid, for the cop, and for two staffers of the St. Paul City Councilperson. They were the only ones deserving of the city/county attorneys’ mercy.

We’ve seen the US Department of Justice exercise a lot of ‘discretion‘ recently (and not so recently). Bobby warns us that this bit of the deep state runs a lot deeper than that.

(After ‘discretion’ finally ran out for him, I assume it was a different but liaising bit of the deep state who arranged that one fine day in the middle of the night the ‘forever’ safe Epstein suddenly expired in his ‘guarded’, ‘suicide-watched’ cell.)

19 comments to How the quality of mercy is strained

  • Deep Lurker

    The prosecutors’ arguments in favor of prosecutorial discretion would be more convincing if those same prosecutors weren’t so zealously opposed to juries exercising the same sort of discretion via jury nullification.

    Another quote against prosecutorial discretion:

    “Every law that isn’t uniformly and promptly enforced, all the time, contributes to public corruption because selective enforcement means someone is using it for blackmail or extortion — and probably thinks ‘that’s what it’s for’ meaning blackmail and extortion have become the norm. So yes, the whole damn thing from prostitution to labor laws to export restrictions to monopoly busters. If you’re not going to enforce it for everybody, all the time, then get rid of it so you don’t have the temptation to become corrupt as you use it for blackmail, extortion, revenge, or for the harassment of dissenters.” – Bear at Sonic

    On the other hand, any practical, real-world system is going to fall significantly short of 100% justice, and better the errors fall on the side of letting off the guilty than convicting the innocent.

  • Snorri Godhi

    On the other hand, any practical, real-world system is going to fall significantly short of 100% justice

    Agreed!

    and better the errors fall on the side of letting off the guilty than convicting the innocent.

    It is not just pedantry to point out that that is a false trade-off: when the innocent is convicted, it is also the case that the guilty walks free.

    The real trade-off is letting off the probably guilty vs convicting the possibly innocent. And of course, the more competently the investigation is carried out, the better the trade-off; even though there will never be a 100% probability of convicting the guilty AND a 0% probability of convicting the innocent.

    Incidentally, ROC curves can help to understand the trade-off, especially for visually-oriented people such as myself. (Link found on Wikipedia, which has an article less visually appealing. This short lecture is also linked by Wikipedia.)

  • Nullius in Verba

    “It is not just pedantry to point out that that is a false trade-off: when the innocent is convicted, it is also the case that the guilty walks free.”

    Ah, but it a three way trade off. Convicting the innocent and letting the guilty go free. Convicting the guilty and letting the innocent go free. And letting both innocent and guilty walk free. (For completeness, I suppose you could also include convicting *both*. If you jail *everyone*, you guarantee getting the guilty.)

  • bobby b

    Snorri Godhi
    February 16, 2020 at 3:58 pm

    “Incidentally, ROC curves can help to understand the trade-off, especially for visually-oriented people such as myself.”

    “A receiver operating characteristic (ROC) is a graph that illustrates the performance of a binary classifier as its discrimination threshold (cutoff) is changed. The curve is created by plotting the true positive rate (TPR) against the false positive rate (FPR) at various cutoff settings. The true-positive rate is known as sensitivity, the false-positive rate is known as the fall-out and is calculated as (1 – specificity). The ROC curve is thus a plot of the true positives (TPR) versus the false positives (FPR). The ROC curve can be generated by plotting the cumulative distribution function (area under the probability distribution from – ∞ to + ∞ ) of the correct detection probability in the y-axis versus the cumulative distribution function of the false-alarm probability in x-axis.”

    Ah, yes, that cleared it right up for me.

    ( 😉 )

  • the other rob

    @ bobby b – Squelched any confusion, did it?

    I’ll get my coat.

  • bobby b

    Deep Lurker
    February 16, 2020 at 1:26 pm

    “On the other hand, any practical, real-world system is going to fall significantly short of 100% justice, and better the errors fall on the side of letting off the guilty than convicting the innocent.”

    We accomplish that before ever getting close to a courtroom, through a rigorous, and rigorously-enforced, set of evidentiary rules and prohibitions. Through years of hard lessons, it’s a rare prosecutor who will even accept a case from the police where the evidence-gathering doesn’t reflect adherence to the rights of the accused.

    So, by the time a case comes into court, chances of a valid guilty result are high, because only those cases whose evidence makes the case a slam-dunk get to that stage. Prosecutors hate losing. It wrecks their record.

    There are always exceptions to this – but they’re relatively rare.

  • Snorri Godhi

    Bobby: my mentioning ‘visually-oriented people’ should have been a clue.
    You were not supposed to read the text.
    Just look at the pictures, and play with the dials, for Heaven’s sake!

  • (As often, comments wander away from the OP topic – in this case to the trade-off that honest trials must make. Oh well, we value the unpredictability of freedom. 🙂 )

    bobby b (February 16, 2020 at 5:21 pm) – at the risk of telling you what you already very well know – I first met this stuff very long ago studying medical tests. The proportion of infected (guilty) in the appropriately-defined target population interacts with the innate true/false-positive / true/false-negative ratios and spreads (the website Snorri links to assumes standard normal distributions) to affect what kind of medical test (evidential standard) to use when.

    As an extreme example, if a crime-scene yields genetic material that only one in a million will match, then it makes a lot of sense to test a suspect already-unearthed by other reasoning and assume a match wraps up the case. By contrast, if you trawl randomly though the UK population for someone who matches, the first match you find has about a one-in-sixty chance of being the guilty party. The relevant false-positive/false-negative ratio depends on the underlying distribution.

    The ROC curves – which you can play with in Snorri’s webpage, dragging the left-hand values and seeing the right-hand graph – study these effects.

  • bobby b

    All I can do at this point is to repeat Chevy Chase’s line:

    https://vimeo.com/65921206

    (“It was my understanding that there would be no math.”)

  • Revelation

    Why do you think George Soros has been pumping millions of dollars into regional DA races all across the US? So that his minions and people seeking his patronage get a certain immunity from the law; conversely his enemies, and lets be honest, anyone conservative will get reamed.

    This cannot endure – the shooting is not far away.

  • Revelation

    A prime manifestation of this is the case of Ed Buck.

    It was only when the third black guy turned up dead from an OD in one of his proprieties did the police finally notice.

    The allegation being Ed Buck lies the power of injecting and murdering his lovers; its still questionable whether her faces any consequences.

    So in Democrat California, you can be a serial killer and still go free if you have the right connections.

    As I said, this cannot endure.

  • bobby b

    Niall Kilmartin
    February 16, 2020 at 6:51 pm

    “As often, comments wander away from the OP topic . . .”

    As often, I drove it that way, so . . . 😐

    I will note that I never noticed a racial disparity in the exercise of prosecutorial discretion. It wasn’t white prosecutors helping only white defendants. In most jurisdictions, the racial composition of the prosecution bar tracks closely to the racial composition of the public being served.

    But prosecutors, whether city or county, tend to be well-educated and upper-middle-class. As NiV has pointed out frequently, we all tend to emphasize most easily with “our own” people, and so prosecutors tend to wince the most when confronted with punishing someone from their own socioeconomic group. Those people benefit from a prosecutor’s exercise of discretion, while the poor and the scummy don’t trigger that dissonance that makes a prosecutor question whether the law ought to be followed exactly.

    I think it’s not so much mercy as it is a feeling that, “there, but for the grace of God, go I”, and they can only have that feeling when dealing with someone similar to “I” – i.e., themselves. And so I don’t think it has a place in a system of justice. If a law is bad when applied to Joe, it’s a bad law period.

  • bobby b

    Revelation
    February 16, 2020 at 8:53 pm

    “Why do you think George Soros has been pumping millions of dollars into regional DA races all across the US?”

    Exactly. In discretion lies power. We’ve spent decades taking away discretion in the judicial system – sentencing guidelines and mandatory minimums taking away judges’ discretion, quashing nullification to take away jury discretion . . . Prosecutors hold the last remaining discretionary power, and Soros is smart enough to invest where it can make a difference.

  • bobby b

    Oops. In mine of 9:00 – “empathize”, not “emphasize.”

  • Revelation

    Prosecutors hold the last remaining discretionary power, and Soros is smart enough to invest where it can make a difference.

    No he is investing where it can deliver corruption.

  • I never noticed a racial disparity in the exercise of prosecutorial discretion. bobby b (February 16, 2020 at 9:00 pm)

    I do not doubt it. A recent instapundit post noted that, while Democrat jurisdictions would once have abused their discretion that way, in our generation Democrats abuse it to other ends.

    Revalation (February 16, 2020 at 10:44 pm), you are agreeing with bobby – Soros is investing where it can make a difference in causing corruption.

  • llamas

    bobby b. wrote:

    ‘I will note that I never noticed a racial disparity in the exercise of prosecutorial discretion. It wasn’t white prosecutors helping only white defendants. In most jurisdictions, the racial composition of the prosecution bar tracks closely to the racial composition of the public being served.’

    maybe things are different in your neck of the woods, but around here, while it’s hard to discern a purely-racial disparity in prosecutorial discretion, I think we often see that discretion being applied in very identitarian ways, and often to serve identitarian political goals. So we see all sorts of prosecutions of the politically-correct and the politically-connected being slow-walked into oblivion. Around here, that often means letting AA defendants off very lightly. Perish the thought, even, but we do have at least one prosecutor around here who, it is sometimes alleged, deliberately over-prosecutes high-profile cases in the suburbs involving politically-incorrect or politically-unfavoured defendants, precisely to highlight the disparity to her constituents – look at how I took it to that Chaldean crook in the tony neighborhood! But I don’t come after our own like that – do I? Vote for Meeeee!

    Although not in our neighborhood, the Smollett case would be a classic example of this. It’s still not clear to me the exact nexus of identity politics that he has now run afoul of, that he’s been indicted – albeit on the piddly charges of lying to the police. I predict that he will skate on those as well, because the prosecutor will underperform.

    llater,

    llamas

  • Paul Marks

    The law must be equally applied.

    That is the basic principle that the Progressive movement denies and has denied from the start.

    This did not start with Mrs Clinton (or John Brennan and all the rest) being let off their clear violations of the law – Progressives have been letting other Progressives off (whilst prosecuting Conservatives for the same crimes – of for no real crimes at all) for more a century. And the “mainstream” media (trained in “Schools of Journalism” that were openly set up to push the “Progressive” ever bigger government cause) are joined-at-the-hip with the Progressive bureaucracy – both being produced by the same Education System.

    The American “Justice” Department, and the IRS (the tax collectors), and the other regulatory agencies are ROTTEN TO THE CORE. They enforce one set of standards on the Progressive establishment elite – and another (totally different) set of standards on people they regard as “reactionary” enemies.

    This must be fought, this must be ended, or the Republic is doomed.

    And without America – the West is doomed.

  • This story (h/t instapundit), about Pennsylvania District Attorney Larry Krasner, whose $1 million-plus election campaign contribution from Soros “dwarfed all fundraising by previous D.A. candidates”, makes the comments of Revelation (February 16, 2020 at 8:53 pm) and bobby b (February 16, 2020 at 9:51 pm) very concrete. Soros does indeed seem to be “getting his money’s worth”.

    He also appears to have had political value-for-money in this prosecutor who fitted up a GOP governor, though it now seems to be unravelling.

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