Doing Justice by Preet Bharara

Author:Preet Bharara [Bharara, Preet]
Language: eng
Format: epub
ISBN: 9781408899014
Publisher: Bloomsbury
Published: 2019-12-19T00:00:00+00:00

Walking Away

If prosecutors did everything within their lawful and constitutional authority, we would be living in a hellscape. Discretion, judgment, wisdom, and restraint matter too. Legal and constitutional authority is not the end of the argument; it’s the beginning. There can be wisdom and justice in staying one’s hand. Discretion is an empty concept if not exercised. Duty counsels not just use of power but fairness and proportionality. This of course is true for all leaders, because any leader who exercises technically permissible authority to the fullest extent would be an autocrat.

The hardest decision to make can be the one to walk away. But that is what justice sometimes requires. And this can take more strength than blundering forth. Let’s look at some examples.

First, there are the low-level offenses.

My good friend Anne Milgram, former attorney general of New Jersey, was once a young prosecutor in the Manhattan DA’s Office. Back in those days, in order to take the New York City subway, you needed a token—a metal coin—and sometimes the token would get stuck in the slot at the turnstile. From time to time, subterranean scammers would take advantage of this design flaw and try to pilfer them. There were two methods, both gross: either use a straw or, even more impressively, literally put your mouth on the slot and suck up the token. This was Anne’s lawyerly analysis of the charging decision in those cases: “If you’re willing to do it, you should get to keep it.” There’s logic to that, but those cases were required to be prosecuted anyway.

Some will no doubt stridently support every such low-grade prosecution, and there’s an argument for that too. Most famously, that school of thinking is referred to as the broken windows theory of policing, which focuses on charging traditionally lower level crimes that, in excess, can contribute to a level of social disorder and community disruption. I get that, and at certain times and in certain places, in the right context, it can make sense. But we can take it too far. Even as MetroCards have replaced the subway token, turnstile jumping continues, but the Manhattan DA’s Office announced in 2018 it would no longer prosecute such cases. That was a good decision in my book. It is unlikely that there will be a huge increase in the turnstile-jumping crime rate.

When I was a junior prosecutor, a colleague of mine set about charging a man for escaping from prison. As I can’t remember his name, let’s call the escapee Harry. Here are the basic facts: Harry was incarcerated in a federal correctional facility after being lawfully arrested and duly convicted of a felony. One day he escaped from the prison. His escape was willful, and he was caught. There was no question about Harry’s state of mind. He was not on furlough, and no one accidentally finds himself outside the prison to which he has been assigned. Harry had no legal defense. That’s about as open-and-shut as a case gets. Escape

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