It seems like something about the ongoing gung-ho mentality of the War on Terror and the War on Drugs feeds the ambition and ego of people in positions of authority. It’s as if they feel empowered all out of proportion to their job description. Suddenly they’re strutting around like Judge Dredd, ready to shout “I am the law” as they execute citizens of Megacity One for slow driving. But I digress.
The original poster child for this phenomenon is right here in Austin, our own local prosecutor Ronnie Earle who thinks his jurisdiction covers the entire nation and who’ll go for the maximum punishment for anyone so long as they’re rich, a politician and a Republican. Recently he lost his title to – thankfully now former – prosecutor Michael ‘just give me a minute and I’ll make up some evidence’ Nifong, the infamous Duke lacrosse non-rape case prosecutor. Now his title is being challenged by federal prosecutor Johnny Sutton who prosecuted the case of the two Border Patrol agents who shot a fleeing drug smuggler. Sutton took a case of federal agents doing their jobs and managed to twist it in such a way that he could obtain convictions under an obscure federal firearms statute and get Border Patrol agents Ignacio Ramos and Jose Compean sentenced to 10 years in jail. That’s 10 years of hard time for what most people would assume was part of their job description. The supposed victim wasn’t even seriously wounded.
Those who know my writing know that I’m both opposed to the War on Drugs and sympathetic to illegal immigration. But even with my disposition to think that drug runners are just persecuted entrepreneurs, I find this case to be disturbing. That Sutton could have found a jury willing to convict the agents is troubling. That he chose to prosecute the case and under such an extreme statute with a mandatory 10 year sentence is an outrage. It may not be blatant prosecutorial misconduct like the Nifong case, but it is certainly prosecutorial excess.
In hearings held this week Sutton blamed the decision to prosecute the border agents and to pursue an excessive punishment on his superiors at the Justice Department. He also attempted to explain his use of the federal statute which normally applies to the use of a firearm in a violent crime by bringing up various other examples of law officers prosecuted under the statute, but all of the examples differed significantly from the case in question, because Osvaldo Aldrete Davila (the drug smuggler) was attempting to evade arrest. In the other cases where the statute has been used which Sutton himself selected as examples, the victims were cooperating with the abusive officers. Sutton also raises issues about the agents careless handling of the case. They actually let Aldrete escape (his wound didn’t stop him from running away), and treated the encounter as if it weren’t significant and didn’t bother to report the shooting. Clearly they had reason to not want to be upfront with their superiors, based on how they ended up being treated.
These basics of the case are pretty well known. What is less well known is that Sutton gave Aldrete prosecutorial immunity, and arranged for him to have a special visa to cross the border freely during the case. While the case was ongoing, Aldrete was caught yet again trying to smuggle more drugs into the country using that visa to cross the border. That case is still under investigation.
Law officers do overstep the bounds of their job just like prosecutors do, and when that happens they need to be held accountable under the law. But common sense ought to play a role too. Crossing the border illegally is a crime. Smuggling marijuana is a crime. Running from the border patrol is a crime. They may not be crimes some of us care about all that much, but they do justify the use of force in stopping the criminal. The force may have been a little excessive, but the punishment in this case does not fit the crime. A suspension or at most being fired would have been more appropriate.
Prosecutors clearly have an important and responsible job, but in addition to the obligation to get convictions, qhich they clearly understand, as officers of the court they also have a responsibility to see justice done. A lot of prosecutors, like Sutton, seem to take the convictions which also advance their career a lot more seriously than their duty to see that justice is done. Justice doesn’t just mean punishing the guilty. It also means protecting the innocent. That ia where Sutton seems to have gone wrong in this case, letting off the criminal and punishing law officers who were just doing their job.
The Judiciary Committee has been doing a pretty thorough job of looking into the case, with members from both parties expressing pretty clear concern over how the agents have been treated. They are looking at whether the law used here ought to be rewritten, and some of them are calling on President Bush to pardon Ramos and Compean, or at least commute their sentences to something more reasonable. If it’s good enough for Scooter Libby then surely it’s good enough for them.
The case raises a great many questions which will likely remain unanswered. In addition to being another example of prosecutorial excess, which raises the question of what it is in our current environment which makes prosecutors think they can get away with almost anything, it also raises the question of whether we have perhaps gone too far in providing prosecutors with draconian laws which allow them to trample the rights of victims, witnesses and even suspects in their pursuit of a sometimes unreliable vision of justice.
In this case we see an example of a law with a very high minimum sentence and no room for judicial discretion. It goes hand in hand with things like ‘three strikes’ laws which can send you to jail for relatively minor offenses which happen to qualify as felonies because a legislator wanted to convince voters he was a law and order hardass. Perhaps the greatest excesses are the inflated sentences applied to drug offenses where the ‘criminals’ ought to be going to rehab, not doing hard time.
Something is out of whack in our legal system. The wrong people are getting prosecuted and the wrong crimes are getting punished, often to serve a political agenda or the ambition of a prosecutor. We’ve got a higher proportion of our population in prison than any other western nation. Maybe it’s time for our legislators to stop worrying about things like illegal immigration and start focusing on punishing real crimes and real criminals and clearing some of the poorly conceived laws off the books. On the other hand, they’re the same people who wrote all the bad laws and launched the War on Drugs, so they’d probably just make things worse.