President Obama has selected Loretta Lynch to replace outgoing Attorney General Eric Holder. Many view Lynch as a "safe," non-controversial choice whose main appeal may be her ability to be confirmed by the new Republican led congress. If confirmed, she will be the first African American woman to serve as U.S. attorney general.
Lynch currently works as the U.S. attorney for the Eastern District of New York where she is typically overshadowed by her more high profile counterpart in the Southern District (Manhattan), Preet Bharara. As a U.S. attorney, Lynch has presided over the typical fare of matters commonly seen in federal court including victimless drug crimes, dubious white collar prosecutions and phony terrorism cases. In short, she is a prototypical U.S. attorney, likely to perpetuate and leave unchanged a department rife with rampant prosecutorial misconduct.
Indeed, maintaining the status quo was likely a major factor in her selection by President Obama. After the turbulent tenure of her predecessor, Eric Holder, Obama sought a nominee whose biggest attribute would be the ability to be confirmed by a Republican led Congress.
Lynch spoke publicly after the announcement of her nomination and came right out of the gate with typical prosecutorial doublespeak and prevarications. "The Department of Justice (DOJ) is the only cabinet department named for an ideal, and this is actually appropriate because our work is both aspirational and grounded in gritty reality," Lynch said at the White House announcement.
"If I have the honor of being confirmed by the Senate, I will work every day to safeguard our citizens, our liberties, our rights and this great nation," Lynch claimed.
Lynch further stated at the announcement that her mission would be to "protect the American people."
In spite of her flowery pronouncements, Lynch's track record as a federal prosecutor stands in stark contrast to these lofty goals. She will almost certainly maintain the status quo which sees the U.S. as the world's leading jailer with the largest prison population the world has ever seen. With 5 percent of the world's population and 25 percent of the planet's total prisoners, the U.S. is the undisputed world leader in both number and percentage of people under lock and key. Continuing to imprison record numbers of people is Lynch's idea of "safeguarding liberty."
Lynch's claim that federal prosecutors work tirelessly to safeguard citizens is recognized to be utterly laughable by many observers. The vast majority of "crimes" pursued by the DOJ have no identifiable victim and in actuality are not crimes against people, but crimes against the System.
There may, however, be a kernel of truth in her characterization of federal prosecutors' work as "aspirational." The prosecutors she will lead largely subscribe to a dogma that has a Manichean worldview in which people either wear white hats or black ones. In this simplistic, childlike perspective, federal prosecutors often see themselves as doing god's work, and proceed in their prosecutions with a pathological level of unyielding certitude.
Even career prosecutor Eric Holder recognized some of the significant problems with the way in which his prosecutors ply their trade and made nominal changes which still fell far short of achieving meaningful relief. Yet Holder was loath to address widespread prosecutorial misconduct among his ranks. Federal prosecutors know that they can suborn perjury, hide exculpatory evidence and commit various other frauds upon the court with utter impunity.
Holder also held himself to a very different standard than those he pursued. Many successful federal prosecutions hinge on hyper technicalities which ensnare the unsuspecting and subject them to disproportionately long sentences. Yet when Holder's actions in the Fast and Furious scandal were called into question, his private emails stated that those examining the scandal could "kiss my ass."
Lynch will inherit a DOJ that is coming under increasing attack for its institutionalized injustices. Amnesty International has issued scathing reports on plea bargaining in U.S. federal courts. Plea bargaining, or being coerced into waiving one's right to right to trial as purportedly guaranteed by the Sixth Amendment of the U.S. Constitution, now accounts for how 97 percent of all federal criminal matters are disposed. With the overwhelming majority of the remaining three percent of cases resulting in a guilty finding, the conviction rate in U.S. federal courts stands at an incredible, and patently illegitimate, 99.5 percent. As of late, federal prosecutors have begun to recognize the ridiculousness of the statistical certainty of conviction and become loath to admit the 99.5 percent figure.
Federal judges, viewed by many as partners in prosecution, often working in tandem with prosecutors, have begun to see some within their ranks recognize the absurdity of the department Lynch will soon head. USDJ Jed Rakoff, who sits in New York's Southern District, recently penned an article entitled "Why Innocent People Plead Guilty." The article pulls few punches and flies in the face of the "best system in the world" propaganda spewed by Lynch at her press conference. Rakoff's article begins with surprising language for a federal judge: "The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes."
Rakoff makes other surprising observations:
Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court's suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a "contract of adhesion" in which one party can effectively force its will on the other party.