Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law
Public prosecutors play a continuing role in shaping the law in books and action, yet the public remains largely unaware of how these faceless bureaucrats of the law shape its itineraries. And rarely in India do lawyers who have served as prosecutors write memoirs of their work ethics and experience, as Preet Bharara has now done. One hopes that this American example is widely emulated, more so as some public and special prosecutors adorn the Indian High Bench.
The abuse of the discretion to prosecute is writ so large in India as to erase a valued difference between prosecution and persecution. The state or the Union government appoints special prosecutors at will, and the benign neglect of the Directive Principle of State Policy urging the separation of the judiciary from the executive (in Article 50 of the Constitution) infects the administration of criminal justice.
Bharara, who served as US Attorney for the Southern District of New York, treads a normatively sound and safe ground when he states that, “Certain norms do matter. Our adversaries are not our enemies; the law is not a political weapon; objective truths do exist; fair process is essential in a civilised society”.
But the whole book must be read to valuably traverse the distance between norm and reality. For example, practices of “concealment” are considered indispensable to justice. Stories about the skills and competence of judges proliferate the lawyers’ grapevine but are never mentioned before a jury; the defendant is led “unshackled” into the courtroom; the lawyer’s views about guilt or innocence are never brought before the jury; many other subtle concealments abound with a view to “avoid bias and corrupt considerations from infecting the search for truth” and to achieve the just closure of a trial. In other words, as Justice Jerome Frank said long ago, rules of procedure and evidence are so designed to ensure that the facts as they occurred never walk into the courtroom; only the admissible facts, or best guesstimates of what actually happened, do.
The system of plea-bargaining results in negotiated justice and escalates the virtues even of just concealment. Often, as the opponents of the system say, one takes a lesser punishment for a crime that one did not commit to avoid a higher punishment for a crime that one probably did! This indictment of the negotiated justice system cannot be laid at the doorstep of any individual lawyer; but, surely, even operatives of the system should consider it legitimate to ask whether the discretion to prosecute is not affected by the plea-bargain system.
In a stunning polemic, an economist and a non-practising lawyer, Paul Craig Roberts and Lawrence M Stratton (The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice, 2000) have showed how plea-bargaining “permits prosecutors to bring charges in the absence of crimes” and thus results in persecution, oppression and subversion of basic liberties otherwise constitutionally ordained. Indeed, prosecuting “crimes without intent shatters the moral authority of law and demeans the honest efforts of citizens to obey the law”. Moreover, it destroys “the security that law provides” and untrammelled “discretion would constitute an invitation to abusive and discriminatory exercise of authority against the disliked or the unpopular on political or other grounds.”
Although Bharara warns us against a “trigger-happy prosecutor” and insists that they are not “cowboys or gunslingers”, he has little to say by way of a critique of the plea-bargaining process as a whole. He, however, fully appreciates the need for full diligence and deliberation before prosecuting individuals for whom criminal investigation and charge is akin to an “earthquake”. He rightly contests the Justice Department Guidelines that “a charge must be brought… if more likely than not [it would] bring about a conviction”; Bharara insists that such an “undue focus on winning (or saving face) corrodes the mission, distorts decision-making, and undermines just process”. This is precisely what the critics of plea-bargaining are saying, except that while Bharara would limit the evil to a few rotten apples, the critics accuse the whole system as tyrannical.
How does Bharara uphold his own criteria in exercising the discretion to, or not to, prosecute? He fancies an infallible organisational culture which values and fosters collegiate decision-making which is robustly independent, professional, honest, and fearless. The public culture, in contrast, regards prosecution as corrupt, venal, violent, ethnically biased and politically dependent. In a sense, this entire book is a pean of praise for the organisational culture.
As an Indian American, Bharara is particularly concerned with charges of racist bias in prosecuting high-profile Indians and South Asians. Clearly, Bharara is no Uncle Tom, and not merely because he was appointed by an administration presided over by President Obama! He particularly dwells on the case of Devyani Khobragade, who was arrested and strip-searched following the “regular procedure of US marshals service in the SDNY”. Bharara writes graciously now, “That could and should have been avoided, given that nobody would have asked for pre-trial detention.” Did the search and the denial of diplomatic immunity (for an alleged domestic labour law violation) constitute due diligence for collegiate prosecutorial discretion?
A similar concern arises for Rajat Gupta (former head of McKinsey, who received a two-year sentence for insider trading), who in an interview marking his recent memoirs Mind Without Fear, maintains that while “Preet Bharara was pretty good at publicity … saying he’s busting Wall Street, he didn’t even make a dent. Now people are saying, ‘What did he do?’ They fined all the banks — the shareholders paid for that — and the executives who perpetrated the meltdown got away scot free with their big bonuses.”
Bharara’s long defence of prosecutorial choices says, in effect, that there was no evidence to prosecute. Regardless of what Preet Bharara says, this scenario granting total impunity to corporate humanity will haunt us all for a long time.
The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi