tag:theconversation.com,2011:/au/topics/prosecution-56320/articlesProsecution – The Conversation2023-08-02T20:39:28Ztag:theconversation.com,2011:article/2104422023-08-02T20:39:28Z2023-08-02T20:39:28ZImmunity for witnesses is a key tool of prosecutors, whether they’re charging Trump or other alleged criminals – here’s how it works and what the limits are<figure><img src="https://images.theconversation.com/files/540826/original/file-20230802-26048-u6ul4j.jpg?ixlib=rb-1.1.0&rect=0%2C33%2C5580%2C3617&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester walks past the E. Barrett Prettyman U.S. District Court House in Washington, on August 1, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protester-walks-past-the-e-barrett-prettyman-u-s-district-news-photo/1586150197?adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p><em>At the heart of the alleged scheme for which Donald Trump was indicted on Aug. 1, 2023, was a fake electors plot designed to help him hold onto power after losing the 2020 presidential election.</em></p>
<p><em>In the U.S., people known as electors from each state and Washington, D.C., elect the president based on the popular vote.</em></p>
<p><em>According to the four-count indictment, Trump and two of six unnamed co-conspirators pulled together fraudulent slates of electors in seven key states in an attempt to subvert the real electors who were obligated, based on results of the popular vote, to cast ballots for Joe Biden. The fake electors cast fraudulent ballots for Trump.</em> </p>
<p><em>This latest indictment represents the most serious charges against Trump yet.</em></p>
<p><em>In Fulton County, Georgia, where there is an investigation into alleged fake electors underway, a court filing indicates that District Attorney Fani Willis <a href="https://apnews.com/article/fulton-county-election-investigation-trump-georgia-fb5240cf854eb546b027f950646268c2">granted immunity to eight fake electors</a>. And it’s possible that special counsel Jack Smith acted similarly in the federal probe. Based on anonymous sources, <a href="https://www.cnn.com/2023/06/23/politics/special-counsel-fake-electors-immunity-testimony-jan-6/index.html">CNN reported that Smith compelled at least two fake electors</a> to testify before a Washington, D.C., grand jury by giving them limited immunity.</em></p>
<p><em>The Conversation U.S. asked legal scholar <a href="https://law.wayne.edu/profile/gb7147">William Ortman</a>, an associate professor of law at Wayne State University, to explain how immunity and limited immunity work.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Jack Smith wears a dark blue suit and a tie and is partially obscured by a dark wall." src="https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540818/original/file-20230802-22768-6zixs7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Special counsel Jack Smith arrives to give remarks following the Aug. 1, 2023, indictment of former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/special-counsel-jack-smith-arrives-to-give-remarks-on-a-news-photo/1570193282?adppopup=true">Dave Angerer/Getty Images</a></span>
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<h2>What does it mean when a witness is granted immunity?</h2>
<p>It depends on what kind of immunity we’re talking about. There are two basic types, which lawyers refer to as <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-717-transactional-immunity-distinguished">transactional immunity and use immunity</a>. It’s easier to think of them as full immunity and limited immunity.</p>
<p>Full immunity is just what it sounds like. When a prosecutor grants a witness full immunity for an offense, she cannot thereafter prosecute the witness for that offense. Full immunity is tantamount to a “<a href="https://www.talksonlaw.com/briefs/what-is-immunity">get out of jail free</a>” card.</p>
<p>Limited immunity is more complicated. When a prosecutor grants a witness limited immunity, she <a href="https://supreme.justia.com/cases/federal/us/406/441/">can still prosecute</a> the witness. But she can’t use the witness’s immunized testimony, or evidence that comes from it, against the witness. </p>
<h2>Why would a prosecutor give a witness immunity?</h2>
<p>Prosecutors grant immunity when they want testimony from someone who has refused. Generally, the government <a href="https://supreme.justia.com/cases/federal/us/445/40/">can compel testimony</a> from anyone with information about a case.</p>
<p>The catch is that witnesses have a right under <a href="https://www.law.cornell.edu/wex/fifth_amendment">the Fifth Amendment</a> to refuse to answer questions that could be self-incriminating. That puts prosecutors in a bind, particularly when they want information that is in the hands – or the minds – of people who participated in the activity they are seeking to prosecute. </p>
<p>Immunity gives prosecutors a way out. If a person has immunity, then by definition their <a href="https://supreme.justia.com/cases/federal/us/406/441/">testimony cannot incriminate</a> them. That’s why if a witness has been granted immunity and refuses to testify, they can be <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-728-criminal-contempt">held in contempt</a> and sent to jail.</p>
<h2>What does a witness get out of immunity?</h2>
<p>It again depends on what kind of immunity we’re talking about. For a witness concerned about being charged with a crime, the benefits of full immunity are obvious. Limited immunity is less attractive to defendants, but it is often still appealing. That’s because it can be difficult for <a href="https://casetext.com/case/united-states-v-hampton-2">prosecutors to establish</a> that they obtained evidence independent of immunized testimony, so limited immunity still offers witnesses some protection against future prosecution.</p>
<p>There are, however, hazards to testifying under a grant of immunity. One is that immunity typically <a href="https://law.justia.com/cases/federal/district-courts/FSupp/495/607/2008000/">does not cover perjury</a>. So if an immunized person testifies and lies, or if the prosecutor just thinks they lied, they could be charged with a crime after all. </p>
<p>Beyond the risk of a perjury charge, testifying often means that a witness must provide information that could send a friend or ally to prison. It also means that the witness will be cross-examined by a defense lawyer, who will likely try to <a href="https://forensicresources.org/wp-content/uploads/2021/05/Cross-examining-the-snitch.pdf">convince the jury</a> that the witness is lying. There is also the possibility that the defendant or his associates, or both, might retaliate against the witness <a href="https://casetext.com/case/piemonte-v-united-states-2">outside of the courthouse</a>.</p>
<h2>Is immunity negotiated between prosecutors and witnesses? How is it determined whether a witness gets full or limited immunity?</h2>
<p>The government can negotiate immunity with a witness, but it doesn’t have to. When immunity is negotiated, it looks a lot like a plea agreement, except that the potential defendant doesn’t plead guilty to a crime. Immunity deals can get complicated, but the basic terms are pretty simple: The government agrees that it will not prosecute the person, which is full immunity, or that it will not use the person’s testimony against them, which is limited immunity, while the person agrees to cooperate in some way, often by testifying.</p>
<p>That said, the government can grant immunity to compel a witness’s testimony, even if the witness objects. That makes sense when you recall that the primary function of immunity is to overcome a witness’s right to remain silent. Whether a witness receives full or limited immunity in those situations is determined by statutes and state constitutions. In the <a href="https://www.law.cornell.edu/uscode/text/18/6002">federal system</a> and <a href="https://www.illinoislawreview.org/wp-content/ilr-content/articles/2003/3/Clair.pdf">some states</a>, the prosecutor merely has to grant limited immunity to compel testimony. In other states, though, prosecutors can compel a person’s testimony only by granting full immunity.</p>
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<img alt="A gavel sits on a bare table, in front of an empty courtroom." src="https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540820/original/file-20230802-20-tdfx92.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">It’s possible that special counsel Jack Smith granted immunity to fake electors or co-conspirators in the federal probe of former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/courtroom-and-gavel-royalty-free-image/876701606?phrase=court+witness+US&adppopup=true">imaginima/Getty Images</a></span>
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<h2>Is there a difference between state and federal immunity?</h2>
<p>Some states are more generous than others, or than the federal government, in granting full rather than limited immunity. Beyond that, there are various procedural differences between state and federal immunity that can sometimes be important. But on the major points, there aren’t many glaring differences between how witness immunity works in the federal and state systems.</p>
<h2>Can granting immunity in one jurisdiction make the job of a prosecutor in another jurisdiction harder?</h2>
<p>Absolutely, and that is why federal and state prosecutors often coordinate. When a witness testifies in a state proceeding pursuant to a formal immunity grant from a state prosecutor, their testimony can’t be used against them in federal court either. In other words, the person has <a href="https://supreme.justia.com/cases/federal/us/378/52/">limited immunity in federal proceedings</a>. And it works the <a href="https://www.law.cornell.edu/uscode/text/18/6002">same way in reverse</a>. When a person testifies with immunity in a federal proceeding, that testimony cannot be used against them in a state prosecution. </p>
<p>That makes good sense. If a person’s testimony could be used against them at a different jurisdictional level, they would still be able to invoke the Fifth Amendment and refuse to answer questions. It can, however, complicate matters when prosecutors at one level try to prosecute a person who received immunity at a different level. One thing that trips up prosecutors in these situations is the requirement that to prosecute someone who has been given immunity they must establish that their evidence is independent of any immunized testimony. That can get tricky.</p><img src="https://counter.theconversation.com/content/210442/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Ortman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Immunity deals may play a key role in the prosecution of former President Donald Trump.William Ortman, Associate Professor of Law, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2074822023-06-12T11:49:48Z2023-06-12T11:49:48Z‘If you want to die in jail, keep talking’ – two national security law experts discuss the special treatment for Trump and offer him some advice<figure><img src="https://images.theconversation.com/files/531249/original/file-20230611-23-dl1h4f.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C2953%2C1921&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump on his airplane on June 10, 2023, two days after his federal indictment.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-to-staff-and-reporters-news-photo/1258608437?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p><em>Lawyer Thomas A. Durkin has spent much of his career working in <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">national security law</a>, representing clients in a variety of national security and domestic terrorism matters. <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">Joseph Ferguson</a> was a national security prosecutor in the U.S. Attorney’s Office for the Northern District of Illinois, where Durkin was also a prosecutor. Both teach national security law at Loyola University, Chicago. The Conversation U.S.’s democracy editor, Naomi Schalit, spoke with the two attorneys about <a href="https://www.documentcloud.org/documents/23839628-trump-indictment">the federal indictment of former President Donald Trump</a> on Espionage Act and other charges related to his retention of national security-related classified documents.</em></p>
<p><strong><a href="https://abcnews.go.com/Politics/republicans-repeat-trumps-claim-doj-weaponization-after-2nd/story?id=99963397">The word “weaponized”</a> has been <a href="https://www.reuters.com/world/us/trump-magnifies-attacks-justice-department-post-charges-speech-2023-06-10/">used by Trump</a>, his supporters and even his GOP rivals to describe the Department of Justice. Do you see the Trump prosecution as different in any notable way from other Espionage Act prosecutions that you’ve worked on or observed?</strong></p>
<p><strong>Durkin</strong>: Obviously, it’s different because of who the defendant is. But I see it in kind of an opposite way: If Trump were anyone other than a former president, he would not have been given the <a href="https://www.nytimes.com/2018/08/23/us/reality-winner-nsa-sentence.html">luxury of a summons to appear in court</a>. There would be a team of armed FBI agents outside his door at 6:30 in the morning, he would have been arrested and the government would be immediately moving to detain. So the idea that he’s being treated differently is true – but not from the way his supporters seem to be arguing. </p>
<p><strong>Ferguson</strong>: What you have is a method, manner and means of pursuing this matter and bringing it forward to indictment that actually completely comports with the deepest traditions and standards of the Department of Justice, which would normally consider all contexts and the best interests of society. </p>
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<a href="https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark haired man with a bear approaching a lectern." src="https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531252/original/file-20230611-150540-ts7ejl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Special Counsel Jack Smith briefly discussed the Trump indictment on June 9, 2023, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/special-counsel-jack-smith-makes-a-statement-from-the-news-photo/1258577211?adppopup=true">Tom Brenner for The Washington Post via Getty Images</a></span>
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<p><strong>If Trump were your client, what would you advise him to do?</strong></p>
<p><strong>Durkin</strong>: The first thing I would do is show him a guidelines memo, which we typically create for every client to help them understand the potential consequences of the charges. Under the <a href="https://www.factcheck.org/2023/06/qa-on-trumps-federal-indictment/">U.S. Sentencing Guidelines, the consequences for Trump under this indictment are serious</a>. My quick calculations indicate that you’re talking about 51 to 63 months in the best case and in the worst case, which I’m not sure would apply, 210 to 262 months. </p>
<p>Whether he wants to roll heavy dice, that’s up to him. But those are very heavy dice. </p>
<p><strong>Ferguson</strong>: I might pull media statements that he has made in the last couple years and explain to him how they have complicated the ability to defend him. I’d put on the table to him that I need to see every statement that he is going to make in the political realm about this before he makes it. I’d tell him he’s otherwise basically hanging himself. </p>
<p>I’d tell him: If you want to die in jail, keep talking. But if you want to try to figure out a way that brings about an acceptable resolution - a plea deal that opens the door to a lighter jail sentence than what the guidelines threaten and, possibly, even no jail time – you need to turn it down or at least have it screened by your lawyers. </p>
<p><strong>Are there specific things he might say between now and a trial that could deepen his trouble?</strong></p>
<p><strong>Ferguson</strong>: No question about that. And people should understand that the things that he said already are being used as <a href="https://www.documentcloud.org/documents/23839628-trump-indictment">evidence of intent</a>. From now on, the repetition of them constitutes new admissible evidence. It’s not like, “Oh, I’ve already said it, so I might as well keep saying it.” </p>
<p>That does not mean that he cannot offer the broad brush characterization, “I’m being wronged. This is the weaponization of law enforcement and the justice system against me, and I will be vindicated,” however imprudent I might think that was. But anything that goes beyond that, and into the actual particulars, referencing the documents themselves, will just make it worse. </p>
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<a href="https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A pile of pages from an indictment." src="https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531253/original/file-20230611-25-wqcduw.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pages from the unsealed federal indictment of former President Donald Trump on 37 felony counts in the classified documents probe.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-pages-are-viewed-from-the-news-photo/1258567425?adppopup=true">Drew Angerer/Getty Images</a></span>
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<p><strong>The Trump indictment provides <a href="https://www.politico.com/news/2023/06/09/trump-indictment-takeaways-00101376">extensive details</a> of what was said and done. Do you take those as true, or as allegations that need to be proved?</strong></p>
<p><strong>Ferguson</strong>: Both. They are technically the allegations that need to be proven, but when you’re speaking at that level of granularity, these are things that actually exist in proof, the proof that is to come. </p>
<p>The government basically raises the bar when it provides this form of granularity. The federal government is a risk-averse enterprise when it comes to these matters, so nothing is put in the indictment unless it exists in actual fact.</p>
<p><strong>Durkin</strong>: If you’re defending someone, you treat the allegations as true.</p>
<p><strong>Can you imagine a situation with all of the facts laid out in this indictment but where they would not indict?</strong></p>
<p><strong>Durkin</strong>: No.</p>
<p><strong>Ferguson</strong>: That’s why we both say that in fundamental respects, this isn’t different from other national security cases. These cases work from the premise that this is a fundamental compromising of the interests of the United States. And those are the cases that the government pursues tooth and nail. With so much in the public domain, and with so much of the defendant himself speaking to all of this, it almost puts the government in a position of saying, “Well, OK, if we have to, here we go.”</p>
<p><strong>Durkin</strong>: There’s only one reason the government could not bring this case, and that’s fear of violence or an attack on the republic. Once you do that, then you might as well close the Department of Justice and forget about any rule of law. </p>
<p><strong>Trump knows a lot of state secrets. An angry Trump in prison has risks. If he were found guilty, what does incarceration look like for him?</strong></p>
<p><strong>Durkin</strong>: I can tell you what it would mean to <a href="https://www.reuters.com/world/us/what-is-espionage-act-what-might-it-mean-donald-trump-2023-06-11/">anyone else</a>. They’d be put in a hole in the wall in <a href="https://www.bop.gov/locations/institutions/flm/">maximum security at Florence, Colorado</a>, and they would apply what’s called “<a href="https://www.justice.gov/jm/jm-9-24000-requests-special-confinement-conditions">Special Administrative Measures</a>.” Several of my terrorism clients have had those imposed on them. There’s a microphone outside their solitary confinement to monitor anything that they say, even between prisoners. Their mail is extremely limited. Their telephone contact is extremely limited. And that’s what would happen to anyone else similarly situated. </p>
<p><strong>Ferguson</strong>: Trump’s insistence on keeping talking about this creates a record that would justify isolation in maximum security on the basis that “We can’t trust this man not to continue to talk. We can’t trust him not to further share these secrets with people who may wish to do harm with them. The only way to avoid that is to put him in isolation in supermax where he doesn’t get to talk with people, except under these extremely closely monitored circumstances, certainly isn’t in a general population situation, gets to take a walk in a courtyard for one hour out of the 24 hours of the day, and the other 23 hours, leaving him mostly without human contact.”</p>
<p><strong>Is there a specific line he could cross that would force the government to seek to detain him prior to trial?</strong></p>
<p><strong>Durkin</strong>: I predict that if he keeps it up, and especially if he keeps suggesting or threatening violence, that the government will be put in a position where they don’t have a choice but to try to move to detain him. In the real world, that’s what would happen if it was anybody but him. Normally, you can’t be threatening this type of stuff without being put in detention. </p>
<p><strong>Ferguson</strong>: The smart play here would be for a judge to put him under a gag order that instructs him on what he may and may not say publicly. That’s already been done by <a href="https://www.npr.org/2023/05/23/1177644144/trump-stormy-daniels-judge-new-york-hush-money-case-carroll">a New York judge in the other pending criminal case</a> against Trump. This would be a complicated exercise in balancing First Amendment rights with national security interests.</p><img src="https://counter.theconversation.com/content/207482/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If you were Trump’s lawyer, what would you advise him to do now? Two national security specialists have some words for and about the former president after his federal indictment.Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoJoseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2061942023-05-25T20:01:20Z2023-05-25T20:01:20ZLehrmann inquiry: what’s a director of public prosecutions or DPP? A legal expert explains<p>Australian public prosecutors are far less visible than defence lawyers, judges and police, yet they are the most powerful actors in the criminal justice system.</p>
<p>Every Australian state and territory, and the Commonwealth itself, has a Director of Public Prosecutions (DPP). Their main role is to initiate and conduct prosecutions of serious crimes in the superior courts.</p>
<p>If police charge a suspect for a serious crime, they prepare a brief of evidence and provide it to the office of the DPP. The office of the DPP then assesses whether the charge is appropriate. For example, it may reduce an attempted murder charge to intentionally causing serious harm.</p>
<p>The DPP also has to decide whether to actually prosecute the offence. The main consideration is whether there is evidence from witnesses and the crime scene that can prove the offence. If there’s insufficient evidence, the DPP shouldn’t prosecute.</p>
<p>If the prosecutor decides not to prosecute a serious crime, there’s no role for defence lawyers and judges, the police investigation is of no consequence, and the suspect is free.</p>
<p>If the prosecutor decides to prosecute a serious crime, the lives of the defendant and the victim are changed forever.</p>
<p>The aborted <a href="https://courts.act.gov.au/__data/assets/pdf_file/0019/2023309/Lehrmann-No-3.pdf">trial of Bruce Lehrmann</a> for an alleged rape in Parliament House in 2019 has raised multiple problems with the prosecution of rape allegations that need to be addressed (Lehrmann has maintained his innocence, and no findings have been made against him).</p>
<p>The resulting <a href="https://www.cjsinquiry.act.gov.au/#:%7E:text=The%20Board%20of%20Inquiry%20was,the%20rights%20of%20those%20involved.">inquiry</a>, which is ongoing, has shone a light on the role of the DPP. </p>
<p>The DPP of the ACT, Shane Drumgold, was cross-examined for a week over his handling of Lehrmann’s prosecution. Drumgold expressed concerns with the conduct of police before and after the aborted trial, and even levelled explosive allegations that he thought the case may have been subject to improper political influence. He later <a href="https://www.cjsinquiry.act.gov.au/__data/assets/pdf_file/0017/2222270/Day-04-ACT-Board-of-Inquiry-11-May-2023.pdf">walked this back</a>, and instead claimed his concerns with the police were most likely due to “a skills deficit”.</p>
<p>This week, Detective Superintendent Scott Moller alleged Drumgold <a href="https://www.cjsinquiry.act.gov.au/__data/assets/pdf_file/0010/2227969/Day-09-ACT-Board-of-Inquiry-23-May-2023.pdf">had</a> “lost objectivity” in the case. Moller said police “were concerned for the presumption of innocence. They were worried about putting Mr Lehrmann before the court when they didn’t believe there was enough evidence.”</p>
<p>Disagreements between police and DPPs are not unusual and are not necessarily a problem. Reasonable minds often differ on prosecutorial decisions, and disagreement can be a healthy “check and balance” within the system.</p>
<p>However, the tension highlights broader issues within the DPP system. </p>
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<h2>What is a DPP?</h2>
<p>Australian DPPs are independent, non-political statutory officers.</p>
<p>They differ from <a href="https://www.justice.gov/usao">District Attorneys</a> in the United States.</p>
<p>In the US, District Attorneys are elected by the people, and it’s common to see television adverts and posters of candidates <a href="https://www.youtube.com/watch?v=c6femI_-Vg0">spruiking their conviction rates</a> and, in some states, their execution rates. They sell their worth to voters by showing themselves to be “tough on crime” and on the people who commit crime.</p>
<p>Australian DPPs are ministers of justice, appointed by the governor, to prosecute crimes fairly, frankly, and without <a href="https://www.newsouthbooks.com.au/books/frank-and-fearless/">fear or favour</a>. </p>
<p>They are prosecutors, not persecutors. They work for the good of the whole community, in the interests of justice. They do not represent the police, the government, complainants or victims of crime.</p>
<p>They should only prosecute a case if it’s in the public interest and there’s <a href="https://www.dpp.sa.gov.au/documents/DPP-Prosecution-and-Policy-Guidelines.pdf">a reasonable prospect of a conviction</a>. </p>
<p>The popularity of the decision with the public or the government isn’t relevant to whether a prosecution goes ahead. </p>
<p>DPPs generally keep a low public profile – public touting of conviction rates is not acceptable. They explain controversial or complex decisions to the public through their websites, <a href="https://www.odpp.nsw.gov.au/odpp-annual-report-2021-2022">annual reports</a> and <a href="https://www.cdpp.gov.au/about-us/media">media releases</a>.</p>
<p>The outcome of any trial must be fair and just, and not simply a “notch in the belt” of a prosecutor.</p>
<h2>Political dilemma</h2>
<p>Prosecutions have not always been non-political in Australia, and in some ways they are still not. Until the 1980s and ‘90s, the attorney-general was responsible for prosecutions – but in their capacity as First Law Officer of the Crown, not as an elected party politician.</p>
<p>An increasingly cynical public had trouble accepting that an attorney-general could really make decisions about prosecutions without being influenced by the political consequences for themselves, their party or their government. </p>
<p>The independent, statutory offices of DPP were established so prosecutorial decisions were made at “arm’s length” from politics, and only matters of law and evidence determined whether a prosecution went ahead or was discontinued.</p>
<p>However, there was a dilemma.</p>
<p>Political involvement in criminal prosecutions is not all bad. Having elected representatives involved in prosecutions means that public views and community concerns about cases and trends are heard and considered.</p>
<p>So there’s a balancing issue: how to make sure prosecutorial decisions are not so political that they are made in the short-term interests of governments, but political enough that they reflect community standards.</p>
<p>To put the <a href="https://www.routledge.com/The-Evolving-Role-of-the-Public-Prosecutor-Challenges-and-Innovations/Colvin-Stenning/p/book/9780367509378">dilemma</a> in legal terms, how do we achieve independence, accountability and the public interest in prosecutorial decisions?</p>
<h2>An odd compromise</h2>
<p>The question is answered in Australia by way of a rather odd compromise.</p>
<p>The DPP makes prosecutorial decisions in a statutory office independent of politics, but the DPP is appointed by the governor, who is advised by the government. DPPs are appointed for <a href="https://www.legislation.sa.gov.au/__legislation/lz/c/a/director%20of%20public%20prosecutions%20act%201991/current/1991.49.auth.pdf">limited terms</a> (unlike judges who are appointed until retirement), so if they displease the government, they may not be reappointed.</p>
<p>Also, the DPP is overseen by the attorney-general. The attorney-general’s powers differ across the country, but some can direct the DPP to take certain actions or step in and take actions with which the DPP disagrees. These decisions are not made in court, so are not necessarily transparent and they may be politically motivated.</p>
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Read more:
<a href="https://theconversation.com/lehrmann-retrial-abandoned-because-of-a-significant-and-unacceptable-risk-to-brittany-higgins-life-195805">Lehrmann retrial abandoned because of 'a significant and unacceptable risk' to Brittany Higgins' life</a>
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<p>The decision to prosecute or not raises big political and philosophical questions. But most importantly, it directly affects peoples’ lives in profound and lasting ways.</p>
<p>A person prosecuted for rape or murder may face extreme stigma, even if they are not found guilty.</p>
<p>A victim who reports a serious crime that is not prosecuted may be retraumatised and their faith in the criminal justice system shattered. </p>
<p>The question of who decides whether or not to prosecute is fundamental to our community and democracy. At the moment, our system has not really resolved the question of how much politics we want in prosecutions, if we want any at all.</p><img src="https://counter.theconversation.com/content/206194/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kellie Toole is a member of the Australian Labor Party</span></em></p>The decision to prosecute or not raises big political and philosophical questions. But most importantly, it directly affects peoples’ lives in profound and lasting ways.Kellie Toole, Lecturer in Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2033192023-04-05T17:39:07Z2023-04-05T17:39:07ZWhat Trump’s business fraud charges mean – a former prosecutor explains the 34 felony counts and obstacles ahead for Manhattan’s DA<figure><img src="https://images.theconversation.com/files/519408/original/file-20230404-16-4nc3h5.jpg?ixlib=rb-1.1.0&rect=36%2C24%2C8142%2C5432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump sits during his arraignment at Manhattan Criminal Court on April 4, 2023. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479827019/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=91UAM5JcfpFsdjhsHJQTFrs6FutV0yIjiaMshiAQVMc=">Andrew Kelly-Pool/Getty Images</a></span></figcaption></figure><p>Former President Donald Trump <a href="https://www.nytimes.com/live/2023/03/31/nyregion/trump-indicted">was arraigned</a> in New York on April 4, 2023. Shortly after, the charges that a Manhattan grand jury <a href="https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-Indictment.pdf">indicted him on were made public</a>.</p>
<p>As anticipated, there were numerous counts of falsifying business records related to “<a href="https://www.nytimes.com/2023/04/05/briefing/trump-felony-charges.html">hush money” payments</a> made in 2016 to three individuals with potentially damaging information about Trump during his presidential election campaign. While porn actress Stormy Daniels and another woman <a href="https://apnews.com/article/donald-trump-stormy-daniels-karen-mcdougal-payoffs-40dd9d1f3590dfcd5c494b1815e9eaa2">allegedly had affairs</a> with Trump, another person – a Trump Tower doorman – claimed to know about a <a href="https://nymag.com/intelligencer/2023/04/trump-doormans-love-child-story-cited-in-trump-indictment.html">child Trump “allegedly fathered</a> out of wedlock.” </p>
<p>Manhattan District Attorney Alvin Bragg and his office described Trump’s alleged criminal activity as arising out of <a href="https://www.manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">a “‘catch and kill’ scheme</a> to identify, purchase, and bury negative information about him and boost his electoral prospects,” according to an April 3 media release. </p>
<p>“Trump then went to great lengths to <a href="https://www.manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">hide this conduct</a>, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws,” the statement continues.</p>
<p>I am a <a href="https://scholar.google.com/citations?user=VxvW--wAAAAJ&hl=en">former prosecutor and law professor</a> who studies the American criminal justice system. Now, with the indictment unsealed, The Conversation asked me to weigh in. Here are three key points to understand – and the challenges that lie ahead for the prosecution of the former president.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Black man wears a blue suit and stands at a New York County lectern next to a poster that says 'People v. Donald J. Trump' and in front of an American flag." src="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519411/original/file-20230404-24-58bq8c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Manhattan District Attorney Alvin Bragg speaks during a press conference about former President Donald Trump’s arraignment on April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479830860/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=-aIOyO-Xkr1I4AYq_OKuGtaliKTIDMOKbUxvv5SPt58=">Kena Betancur/Getty Images</a></span>
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<h2>1. Falsified business records are the key issue</h2>
<p>The unsealed indictment alleges 34 separate felony counts of falsifying business records. Creating a false business record with the intent to defraud is a <a href="https://www.nysenate.gov/legislation/laws/PEN/175.05">Class A misdemeanor</a> offense in New York. But the offense becomes a low-level <a href="https://www.nysenate.gov/legislation/laws/PEN/175.10">Class E felony</a> if prosecutors can prove that the false business records were created for the purpose of facilitating a second crime. </p>
<p>It is important to keep in mind that the alleged crimes are not the payoffs, but the false business records used to document those payoffs. That explains the 34 counts. The district attorney alleges a separate offense for each false invoice and business record involved in obscuring the true nature of the transactions. </p>
<p>Each count is punishable by up to four years in prison, but it is possible that, even if there are convictions on multiple counts, the judge will not mandate any incarceration for Trump at all. </p>
<p>One of the surprises in the unsealed indictment is that, while there is a second, separate crime Trump allegedly committed, that crime is not specified. A separate statement of facts released by the Manhattan district attorney’s office <a href="https://www.manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-SOF.pdf">lays out further detail</a>, but again does not specifically identify the second crime.</p>
<p>Bragg said during a press conference on April 4, 2023, that New York law <a href="https://www.axios.com/2023/04/04/trump-indictment-felony-alvin-bragg-analysis">does not require him</a> to list the underlying crimes in the indictment. The statement of facts hints at multiple legal theories that Bragg will rely on to elevate the misdemeanor offense to a felony. Specifically, this could include potential tax avoidance and campaign finance violations.</p>
<h2>2. Bragg will have to prove Trump’s involvement, fraudulent intent</h2>
<p>The prosecution has a number of obstacles to overcome to prove its case, which will likely not go to <a href="https://www.nbcnews.com/politics/donald-trump/trump-trial-gop-presidential-primaries-2024-rcna78206">trial</a> until, at the earliest, late 2023 or early 2024.</p>
<p>Although there is still a lot that is not yet known – such as the specific evidence that the prosecutor will rely on – the indictment and statement of facts brings the key obstacles into focus. </p>
<p>Some of the challenges will be factual and others will be legal.</p>
<p>I see two primary factual questions. One will be whether the prosecution can establish Trump’s personal involvement in creating the false business records. It will not be enough to show that Trump authorized the hush money payments at the center of this case. </p>
<p>The prosecution has to show Trump’s personal involvement in the details, and specifically, that he directed others to create the false business records that allegedly hid the true nature of those transactions.</p>
<p>Second, the prosecution will have to prove that Trump’s intent in creating these false business records was to cover up, or facilitate, another crime – such as <a href="https://www.fec.gov/legal-resources/enforcement/">campaign finance violations</a>. If Trump merely sought to avoid embarrassment arising out of these alleged affairs, that will not be sufficient to prove the charged offenses. One way prosecutors try to prove criminal intent in cases like this is through the defendant’s own words. This can be via recordings, if they exist, or testimony from witnesses about what the defendant knew and said about the records as they were being created. </p>
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<span class="caption">Trump opponents demonstrate outside of the Manhattan Criminal Courthouse on the day of his arraignment, April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479823666/photo/new-york-grand-jury-votes-to-indict-former-president-trump.jpg?s=612x612&w=gi&k=20&c=ba_XYK1XxlOHVNido6LFPR-JB8PVo8WnBhst3omLVe4=">Spencer Platt/Getty Images</a></span>
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<h2>3. There will be other legal hurdles</h2>
<p>There are also some complex legal questions that the trial judge and potentially an appeals court will be asked to resolve. </p>
<p>Typical prosecutions – for example, a murder trial or one involving drug dealing or insider trading – fall into familiar patterns that allow prosecutors, judges and commentators to follow the same basic blueprint. </p>
<p>There does not appear to be a familiar blueprint for this case – where a false business record was generated in an organization’s records in furtherance of alleged campaign finance violations.</p>
<p>That doesn’t necessarily mean this is a bad case for the prosecution to pursue, but it does mean that Trump’s lawyers will have ample opportunity to launch legal challenges. The most obvious challenge I foresee is an attack on Bragg’s legal theory that takes this case from a misdemeanor to a felony.</p>
<p>Until there is more clarity on that theory, however, it is difficult to predict how the courts will rule.</p>
<p>Beyond the legal and factual complexities, there will be a series of novel aspects of this case that arise because of the defendant’s status as a former president and the <a href="https://www.politico.com/interactives/2023/republican-candidates-2024-gop-presidential-hopefuls-list/">apparent front-runner</a> for the <a href="https://www.bbc.com/news/world-us-canada-63550237">2024 Republican presidential nomination</a>. Every aspect of this case will be scrutinized and, while New York City courts are used to media attention, the attention in this case is likely to be unprecedented. </p>
<p>That attention will put a lot of pressure on a criminal justice system that is already overburdened and imperfect. It is difficult to forecast how this case will play out, but one thing to expect during these proceedings is the unexpected.</p><img src="https://counter.theconversation.com/content/203319/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Bellin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>False business records – not hush money payments – are at the heart of New York’s prosecution of former President Donald Trump. But not all the alleged crimes have been revealed.Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law, William & Mary Law SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1976572023-01-12T21:12:42Z2023-01-12T21:12:42ZThe young ages of the girls charged in the swarming death of a man in Toronto may affect trial outcomes<figure><img src="https://images.theconversation.com/files/504127/original/file-20230111-11-my5s4d.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5798%2C3845&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bail hearings are underway for the eight teenage girls charged in the murder of a man in Toronto.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>In late December, eight teenage girls who had reportedly met online decided to meet in-person in downtown Toronto on a Saturday night. Shortly after midnight on Sunday Dec. 18, <a href="https://www.cbc.ca/news/canada/toronto/man-death-eight-teen-girls-charged-toronto-1.6692698">a 59-year-old man was allegedly swarmed, assaulted and stabbed</a> by the group.</p>
<p>Bystanders flagged down emergency medical personnel, but the man succumbed to his injuries.</p>
<p>The victim, Ken Lee, had recently moved to <a href="https://www.cbc.ca/news/canada/toronto/ken-lee-victim-swarming-attack-toronto-1.6708778">a homeless shelter near the site of the attack</a>. His female companion said that she was smoking a cigarette with the victim when teens approached. According to this woman, a group of girls tried to take her alcohol and Lee told the teens to stop and to leave her alone. </p>
<p>At that point, she says the teens started to attack Lee. Afraid of what might happen to her, the woman walked away.</p>
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<figcaption><span class="caption">CBC News covers the stabbing death of a man in downtown Toronto.</span></figcaption>
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<h2>Young perpetrators</h2>
<p>Eight teens were arrested, and a number of weapons were confiscated from them. Three of the teens were 13 years old, three were 14 years old and two were 16 years old. <a href="https://www.theguardian.com/world/2022/dec/20/teenager-girls-toronto-stabbing-swarming">Three of the teens were known to the police</a>. </p>
<p>The teens have been charged with second-degree murder.</p>
<p><a href="https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ststclsnpsht-yth/index-en.aspx">Several of the factors in this case are unique</a>: A group of females (72 per cent of youth appearing before court are male), mostly unknown to each other (unlike gangs who are an organized group to gain power and recognition), between the ages of 13 and 16 years (57 per cent of youth who appear before court are between 16 and 17 years old), allegedly committed murder (theft is the most common type of crime committed by youth).</p>
<p>Younger teens may be shown greater leniency than older teens given their diminished capacity to understand the consequences of their behaviour.</p>
<h2>Prosecuting youth</h2>
<p>The Youth Criminal Justice Act (YCJA) covers the prosecution of youth over the age of 12 and under 18 years old <a href="https://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html">for criminal offences</a>. Because youth are still maturing, this must be accounted for in the <a href="https://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/oycja-alssj.html">treatment, prosecution and resolution of crime</a>. Rehabilitation and reintegration into society are emphasized. </p>
<p>Under the YCJA, the identities of teens cannot be made public. Although youth cannot be tried as adults, a youth can be sentenced as an adult if convicted. A youth cannot spend <a href="https://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/syp-dpaa.html">more than 10 years in custody</a>.</p>
<p>The sentence for first-degree murder as an adult is <a href="https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2021-sntnc-clcltn-fstfcts-02/index-en.aspx">life without parole for 25 years</a>. For second-degree murder, the minimum sentence is life in prison with no parole for 10 years, <a href="https://www.cbc.ca/news/canada/what-s-the-difference-between-1st-degree-murder-2nd-degree-murder-and-manslaughter-1.5068520">although sentences can be longer</a>. </p>
<p>Factors that may be considered when determining sentencing include age of the convicted, degree of violence of the crime and the interests of society.</p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/CmZ993irC4O","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<h2>Young defendants</h2>
<p>We conducted a study to examine whether a defendant’s developmental age (which reflects their behavioral, cognitive and physical development), chronological age (which is based on their date of birth) and <a href="https://doi.org/10.1007/s11896-016-9201-1">race influenced mock-jurors’ decision-making</a>. </p>
<p>Four hundred and forty-four participants read a trial transcript involving an assault where the defendant allegedly shoved the victim to the ground at a grocery store. The defendant’s developmental age (14 or 24 years old), chronological age (14 or 24 years old) and race (white, Black or Indigenous) were varied. </p>
<p>We found that mock jurors’ responses varied according to developmental age: a developmentally 24-year-old was given more guilty verdicts than a developmentally 14-year-old. Race also was influential in that the Black defendant received fewer guilty verdicts than the white defendant. </p>
<p>When the defendant had a developmental delay (the chronological age was higher than the developmental age), he was perceived as less guilty than a defendant whose chronological age matched his developmental age. </p>
<p>Regardless of race, younger defendants and those with developmental delays may be perceived more favourably and possibly treated more leniently than adults. </p>
<h2>Toronto teen swarming</h2>
<p><a href="https://globalnews.ca/news/9388783/toronto-homeless-man-swarming-death-teens-court/">According to coverage of the bail hearings</a>, some of the teens appeared confused when asked if they understood what was happening. Only two parents of the seven accused seemed to be in attendance for the virtual proceedings, and one defendant’s lawyer was absent. </p>
<p><a href="https://www.cbc.ca/news/canada/toronto/swarming-toronto-teen-girls-bail-1.6699519">One of the eight teens accused of murder is free on bail</a>, but with conditions that include <a href="https://toronto.ctvnews.ca/case-of-8-teens-charged-in-toronto-homeless-man-s-death-set-to-return-to-court-1.6218364">no use of internet or a cell phone</a>. Bail hearings for the other girls involved are ongoing.</p>
<p>As the case unfolds, age may impact the judicial decision-making and ultimately, the case outcomes for these teens.</p><img src="https://counter.theconversation.com/content/197657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joanna Pozzulo receives funding from the Social Sciences and Humanities Research Council.</span></em></p><p class="fine-print"><em><span>Emily Pica does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Eight teen girls are charged in the stabbing death of a homeless man in Toronto. Research shows that jurors tend to respond when the perpetrator of a crime is or appears to be younger.Joanna Pozzulo, Chancellor's Professor, Psychology, Carleton UniversityEmily Pica, Associate Professor, Psychological Science and Counseling, Austin Peay State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1574282021-03-25T04:01:13Z2021-03-25T04:01:13ZSexual assault victims can easily be re-traumatised going to court — here’s one way to stop this<figure><img src="https://images.theconversation.com/files/391597/original/file-20210325-15-w6k8nf.jpg?ixlib=rb-1.1.0&rect=0%2C71%2C3976%2C2335&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>As federal parliament has been <a href="https://www.smh.com.au/politics/federal/brittany-higgins-audio-recordings-reveal-why-she-stayed-quiet-about-alleged-rape-20210322-p57d3e.html">rocked by allegations</a> of sexual violence, one of the frequent questions has been “why don’t victims go to police?” </p>
<p>But this is not a straightforward or easy solution. And victims can easily end up being re-traumatised by going through the criminal justice system. </p>
<p>How can we make going to court better for those seeking justice? One critical way is to provide victims with their own lawyers. </p>
<p>What many people may not realise, is that throughout the legal process, victims are simply assigned a lawyer through the Director of Public Prosecutions.
This means they do not have access to their own lawyers to protect their privacy and individual interests at trial. </p>
<h2>Women’s fears and community mistrust</h2>
<p>According to the Australian Bureau of Statistics, <a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">almost 90%</a> of women do not report their sexual assault to police.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">Almost 90% of sexual assault victims do not go to police — this is how we can achieve justice for survivors</a>
</strong>
</em>
</p>
<hr>
<p>One of the reasons victims do not report sexual violence — or delay reporting — is fear they will <a href="https://theconversation.com/delays-in-reporting-alleged-rapes-are-common-even-years-later-this-isnt-a-barrier-to-justice-156201">not be believed</a>. This does not come out of nowhere. </p>
<p>According to a 2017 national survey, there is a widespread <a href="https://20ian81kynqg38bl3l3eh8bf-wpengine.netdna-ssl.com/wp-content/uploads/2019/12/anr001-NCAS-report-WEB-1019.pdf">mistrust</a> of women’s reports of violence by the community, even though evidence shows <a href="https://apo.org.au/sites/default/files/resource-files/2017-09/apo-nid107216_1.pdf">false reports are rare</a>. </p>
<h2>The DPP has significant powers</h2>
<p>Even for those who do report, the ability for victims to get justice is out of their hands. </p>
<p>The Director of Public Prosecutions has significant discretionary powers, including the ability to decide whether a criminal case should proceed and how it will be prosecuted. The reality is victims have no control or ability to <a href="https://www.theaustralian.com.au/business/legal-affairs/victims-deserve-a-right-of-review/news-story/fa57f46ff343f77feec8b5f11db35518">challenge</a> prosecutors’ decision-making.</p>
<p>For cases that proceed to prosecution, victims’ experiences are generally negative. This is due to insensitive treatment by criminal justice personnel, including <a href="https://www.theaustralian.com.au/inquirer/sluts-and-nuts-defence-still-part-of-the-tactics/news-story/566388d461cfdd3ca1f00503d4d700d1">defence lawyers</a>.</p>
<p>Compounding this are the <a href="https://www.routledge.com/Adversarial-Justice-and-Victims-Rights-Reconceptualising-the-Role-of-Sexual/Iliadis/p/book/9780367204181">myths and stereotypes</a> that underpin [<a href="https://www.independent.co.uk/news/uk/crime/rape-sexual-history-assault-cross-examine-trial-court-voices4victims-plaid-cymru-mp-liz-savile-a7570286.html">intrusive defence questioning</a>] at trial. These include questions about victims’ sexual history, used to create a <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819880953?journalCode=crjb">false perception</a> the victim consented to sexual activity or is the “type” of person who is more likely to <a href="https://theconversation.com/amp/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">consent</a>.</p>
<p>This is also a reason why so few <a href="https://www.theguardian.com/australia-news/2021/mar/17/the-rule-of-law-how-the-australian-justice-system-treats-sexual-assault-survivors">convictions</a> are reached. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/consent-laws-arent-the-reason-for-low-sexual-assault-conviction-rates-its-how-society-views-rape-itself-157689">Consent laws aren't the reason for low sexual assault conviction rates — it's how society views rape itself</a>
</strong>
</em>
</p>
<hr>
<h2>Women are re-traumatised</h2>
<p>Given victims are disclosing highly personal and distressing details about their assaults, and potentially being subjected to fierce cross-examination at trial, they are often <a href="https://theconversation.com/survivors-of-sexual-violence-are-let-down-by-the-criminal-justice-system-heres-what-should-happen-next-94138">re-traumatisated</a> by going to court. </p>
<p>This intensifies the barriers women face reporting and having their stories heard, which further denies them validation and control. </p>
<p>As US psychiatrist <a href="https://pubmed.ncbi.nlm.nih.gov/16043563/">Judith Herman</a> has noted, </p>
<blockquote>
<p>if one set out intentionally to design a system for provoking symptoms of traumatic stress, it would look very much like a court of law. </p>
</blockquote>
<h2>The adversarial system</h2>
<p>The <a href="https://lawhandbook.sa.gov.au/ch27s05.php">adversarial nature</a> of Australia’s criminal justice systems means crime is contested between two parties: the state who prosecute in the public interest and the accused person. </p>
<p>This means the victim is not considered a party to proceedings, despite being directly impacted by the offence, and therefore does not have an active role or voice. </p>
<p>Courts have a duty to protect victims from certain misleading, intimidating and humiliating questioning, such as in relation to victims’ <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s352.html">sexual history</a> and <a href="https://journals.sagepub.com/doi/pdf/10.1177/0022018317728824">character</a>. </p>
<p>However, <a href="https://bridges.monash.edu/articles/journal_contribution/Development_of_the_Office_of_Commissioner_of_Victims_Rights_as_an_Appropriate_Response_to_Improving_the_Experiences_of_Victims_in_the_Criminal_Justice_System_Integrity_Access_and_Justice_for_Victims_of_Crime/8325155">research shows</a> defence counsel continue to ask such questions to undermine victims’ character and testimony. </p>
<h2>Calls for victim lawyers</h2>
<p>Scholars and victim advocates, including women’s specialist and legal services, have raised <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/ALRC114_WholeReport.pdf">concerns</a> over the lack of judicial intervention. </p>
<p>This has led to calls for government-funded legal representation to enhance victims’ treatment in the legal process and reduce the likelihood — or extent of —re-traumatisation. </p>
<figure class="align-center ">
<img alt="Woman walking, looking concerned on phone." src="https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victim lawyers are used in other legal systems, particularly in Europe.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>If victims can be assured their privacy and interests will be protected, they might be more inclined to report and/or stay engaged in the criminal justice system. Having a lawyer present at trial may also decrease victims’ feelings of stress and anxiety and improve their confidence when testifying. </p>
<p>As former South Australian Commissioner for Victims’ Rights, <a href="https://aija.org.au/wp-content/uploads/2017/08/OConnell2.pdf">Michael O’Connell</a>, has argued, legal representation can allow victims to feel like </p>
<blockquote>
<p>integral players […] rather than mere bystanders in the criminal justice system.</p>
</blockquote>
<h2>Victim lawyers around the world</h2>
<p>There are several different models of legal representation for victims around the world. </p>
<p>In the German system, victims of sexual offences <a href="https://www.abc.net.au/radionational/programs/lawreport/10980050">can engage lawyers</a> who have <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2014/6.pdf">rights to represent them</a>, including the ability to elicit evidence and ask questions of the accused person at trial. In <a href="https://link.springer.com/book/10.1007/978-3-030-04546-3">Denmark and Sweden</a>, victims of sexual offences also have the right to engage a lawyer from as early as the police reporting stage, to receive advice about the legal process and compensation claims, as well as moral support. </p>
<figure class="align-center ">
<img alt="Lady Justice statute in Frankfurt." src="https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victims have a much more powerful role in German criminal trials.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>The right to victim lawyers in adversarial systems - like Australia’s — is less common. Victim lawyers are available in <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819851848">Ireland</a> to prevent the disclosure of victims’ sexual history evidence in court. England and Wales also recently <a href="https://needisclear.files.wordpress.com/2020/11/svca-evaluation-final-report-1.pdf">piloted</a> provision for victim lawyers, as has Northern Ireland. </p>
<p>In <a href="https://www.legalaid.qld.gov.au/Find-legal-information/Personal-rights-and-safety/Protecting-sexual-assault-counselling-records">Queensland</a> and <a href="https://www.legalaid.nsw.gov.au/what-we-do/civil-law/sexual-assault-communications-privilege-service">New South Wales</a>, sexual assault victims can be legally represented when challenging defence applications for the disclosure of their counselling notes and other confidential therapeutic records. However, this representation does not extend to the actual criminal trial. </p>
<h2>Resistance to the idea</h2>
<p>Despite the <a href="https://www.routledge.com/Adversarial-Justice-and-Victims-Rights-Reconceptualising-the-Role-of-Sexual/Iliadis/p/book/9780367204181">benefits</a> of lawyers for victims, <a href="https://theconversation.com/lawyers-for-victims-of-crime-wont-guarantee-better-results-27629">concerns</a> about practical implications remain. </p>
<p>This is due to the perceived threat a third party — a victim’s lawyer — might pose to the two-sided contest between the state prosecutor and the accused person. There are concerns the system would become unbalanced. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/delays-in-reporting-alleged-rapes-are-common-even-years-later-this-isnt-a-barrier-to-justice-156201">Delays in reporting alleged rapes are common — even years later. This isn't a barrier to justice</a>
</strong>
</em>
</p>
<hr>
<p>In 2016, the Victorian Law Reform Commission <a href="http://lawreform.vic.gov.au/sites/default/files/VLRC_Victims%20Of%20Crime-Report-W_0.pdf">opposed the idea</a> on the basis police and prosecutors are already obliged <a href="http://classic.austlii.edu.au/au/journals/MonashULawRw/2011/29.html">to keep victims informed</a> about the legal process and victim lawyers might lead to “<a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-6478.2005.00325.x">dual representation</a>”. </p>
<p>However, this fails to recognise victims have legitimate interests that might compete with the interests of the prosecution, who represent the public interest.
These include rights to privacy about their personal records and prior sexual history, and to be free from character attacks during cross-examination at trial.</p>
<p>While it may not be viable, at present, to introduce victim lawyers throughout the entire prosecution process, there is certainly scope to introduce them at specific stages. </p>
<h2>Change that is positive and possible</h2>
<p>In the first instance, we need social and cultural change to quash the myths and stereotypes about sexual violence. They prevent victims from reporting and undermine investigations, prosecutions and victim experiences. </p>
<p>In the meantime, introducing victim lawyers is a practical, possible change we can make to enhance victims’ well-being, safety and access to justice.</p><img src="https://counter.theconversation.com/content/157428/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Iliadis receives funding from the Australian Institute of Criminology. She is co-convenor of the Deakin Research on Violence Against Women Hub.</span></em></p><p class="fine-print"><em><span>Kerstin Braun does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many people do not realise victims do not have access to their own lawyers to protect their privacy and individual interests at trial.Mary Iliadis, Senior Lecturer in Criminology, Deakin UniversityKerstin Braun, Senior Lecturer in Criminal Law and Procedure, University of Southern QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1285152019-12-20T13:57:58Z2019-12-20T13:57:58ZHow being ‘tough on crime’ became a political liability<figure><img src="https://images.theconversation.com/files/308029/original/file-20191219-11919-pb8c0s.jpg?ixlib=rb-1.1.0&rect=76%2C48%2C4589%2C2903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kamala Harris' campaign fizzled as her past as a prosecutor haunted her candidacy.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Election-2020-Democrats-California/e295b569975d4933afac6fdf3c72728f/765/0">AP Photo/Jeff Chiu</a></span></figcaption></figure><p>Kamala Harris recently dropped out of the presidential race after months of <a href="https://www.nytimes.com/2019/01/17/opinion/kamala-harris-criminal-justice.html">attacks from the left</a> for her “tough-on-crime” record as San Francisco’s district attorney and as California’s attorney general.</p>
<p>A few years ago, the idea that being tough on crime would be a liability – not an asset – was unthinkable for both Democrats and Republicans. </p>
<p>Bill Clinton, during the 1992 presidential race, interrupted his campaign so he could return to Arkansas <a href="https://www.nytimes.com/1992/01/25/us/1992-campaign-death-penalty-arkansas-execution-raises-questions-governor-s.html">to witness the execution of a mentally disabled man</a>. During Harris’ 2014 reelection campaign for attorney general, she actively sought – and won – the endorsements <a href="https://www.theatlantic.com/ideas/archive/2019/12/kamala-harris-was-impossible-bind/602971/">of more than 50 law enforcement groups</a> en route to <a href="https://ballotpedia.org/California_Attorney_General_election,_2014">a landslide victory</a>.</p>
<p>But something has changed in recent years. Harris’ failure to gain traction as a presidential candidate has coincided with a growing number of “progressive prosecutors.”</p>
<p>In the past, I would have scoffed at the notion of a progressive prosecutor. It would have seemed like a ridiculous oxymoron. </p>
<p>But in one of the most stunning shifts in American politics in recent memory, a wave of elected prosecutors have bucked a decadeslong tough-on-crime approach adopted by both major parties. These prosecutors are refusing to send low-level, non-violent offenders to prison, diverting defendants into treatment programs, working to eradicate the death penalty and reversing wrongful convictions.</p>
<h2>The unchecked power of prosecutors</h2>
<p>In 1968, when I was 8 years old, my father was sentenced to 22 to 55 years in the Ohio State Penitentiary for the possession and sale of marijuana. During the trial, the district attorney had repeatedly assured the jurors that he hadn’t promised the state’s principal witness – then serving a long sentence – leniency in return for testifying against my father. </p>
<p>In truth, they had struck that very bargain. After studying the warden’s own law books, my father appealed the conviction, representing himself. He was ultimately <a href="https://casetext.com/case/armour-v-salisbury">vindicated by the 6th U.S. Circuit Court of Appeals</a> after proving that the district attorney had deliberately lied to the jury.</p>
<p>That was in 1974. I went on to become <a href="https://gould.usc.edu/faculty/?id=129">a lawyer and law professor</a>. During the years I spent teaching and studying the relationship between race and the law, <a href="https://www.sentencingproject.org/wp-content/uploads/2019/05/US-prison-pop-1925-2017.png">the prison population exploded</a>, and my distrust toward government prosecutors only deepened. Too often, it seemed like they were bringing excessively punitive charges <a href="https://www.hrw.org/report/2013/12/05/offer-you-cant-refuse/how-us-federal-prosecutors-force-drug-defendants-plead">in order to force defendants into plea deals</a>. Too often, their approach seemed to reflect a longing for retribution and revenge rather than rehabilitation.</p>
<p>In 2017, law professor John Pfaff <a href="https://www.google.com/books/edition/Locked_In/BirXCwAAQBAJ?hl=en">was able to show</a> that mass incarceration was due, first and foremost, to the nearly unchecked power of district attorneys. </p>
<p>With reported crimes and arrests <a href="https://qz.com/923037/americas-mass-incarceration-crisis-cant-be-fixed-until-we-realize-we-have-been-looking-at-the-problem-all-wrong/">steadily declining in the 1990s and 2000s</a>, you might have expected incarceration rates to also fall. Instead, they soared. Pfaff traces this perplexing trend to <a href="https://qz.com/923037/americas-mass-incarceration-crisis-cant-be-fixed-until-we-realize-we-have-been-looking-at-the-problem-all-wrong/">one key statistic</a>: Between 1994 and 2008, the probability that a district attorney would file a felony charge against someone who’s been arrested <a href="http://bostonreview.net/race-law-justice/vesla-m-weaver-untold-story-mass-incarceration">roughly doubled</a>, from about 1 in 3 to nearly 2 in 3.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=379&fit=crop&dpr=1 600w, https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=379&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=379&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=476&fit=crop&dpr=1 754w, https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=476&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/307961/original/file-20191219-11924-3i3n44.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=476&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">To some voters, the Democratic Party’s approach to criminal justice under Bill Clinton hasn’t aged well.</span>
<span class="attribution"><a class="source" href="https://images.currentaffairs.org/2016/04/prisoners-1024x646.png">Current Affairs</a></span>
</figcaption>
</figure>
<p>More than stiff drug laws, punitive judges, overzealous cops or private prisons, <a href="https://www.washingtonpost.com/outlook/prosecutors-role-in-causing--and-solving--the-problem-of-mass-incarceration/2019/04/19/d370d844-5c93-11e9-a00e-050dc7b82693_story.html">prosecutors had been the main drivers</a> of a <a href="https://www.sentencingproject.org/wp-content/uploads/2019/05/US-prison-pop-1925-2017.png">prison population</a> that had quadrupled since the mid-1980s. </p>
<p>Meanwhile, black Americans continued to be disproportionately incarcerated. In 2017, there were 1,549 black prisoners for every 100,000 black adults – <a href="https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/">nearly six times</a> the incarceration rate for whites and nearly double the rate for Hispanics.</p>
<p>This prosecutorial approach wasn’t punished at the ballot box; instead, racking up convictions and plea deals <a href="https://www.thedailybeast.com/its-too-dangerous-to-elect-prosecutors">seemed to bolster the political careers of district attorneys</a>.</p>
<h2>The new sheriffs in town</h2>
<p>No longer.</p>
<p>Since 2013, roughly 30 reform-minded prosecutors have been elected. A few now preside over prosecutorial staffs in some of the nation’s biggest cities, like Philadelphia’s <a href="https://www.phillymag.com/news/2017/11/07/larry-krasner-wins-district-attorney-general-election/">Larry Krasner</a> and Boston’s <a href="https://theintercept.com/2018/09/07/boston-suffolk-county-district-attorney-rachael-rollins/">Rachael Rollins</a>. But they also include chief prosecutors of smaller municipalities, like <a href="https://www.heraldsun.com/news/local/crime/article211206354.html">Satana Deberry</a>, who was elected district attorney of Durham County, North Carolina, in 2018, and <a href="https://www.huffpost.com/entry/parisa-dehghani-tafti-prosecutor-arlington-virginia-primary-democrats_n_5cff25a7e4b06d839dc3f409">Parisa Dehghani-Tafti</a>, the commonwealth’s attorney of Arlington County, Virginia, who won on a platform of ending mass incarceration in 2019.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/307965/original/file-20191219-11909-xl1fh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Satana Deberry won her district attorney race in 2018 by campaigning on ending cash bail.</span>
<span class="attribution"><a class="source" href="https://d1n0c1ufntxbvh.cloudfront.net/photo/bc78a2f6/32771/1200x/">Satana Deberry</a></span>
</figcaption>
</figure>
<p>These prosecutors are reinventing the role of the modern district attorney. Krasner, for example, <a href="https://krasnerforda.com/platform">campaigned on</a> eliminating cash bail, reining in police misconduct and upending a system of mass incarceration that disproportionately imprisons people of color. He won with <a href="https://ballotpedia.org/Lawrence_Krasner">nearly 75% of the vote</a> in the general election.</p>
<p>In 2018, before a packed lecture hall, Krasner <a href="https://www.youtube.com/watch?v=cfPSYQRHP9Y">told my law students</a> that ending racialized mass incarceration is “the most important civil rights issue of our time.” He pointed out that the key difference between a traditional prosecutor and progressive one is that the latter is a “prosecutor with compassion” and “a public defender with power.” </p>
<p>This growing crop of “prosecutors with compassion” and “public defenders with power” has upended my own binary way of thinking about the role of the district attorney. </p>
<p>I’ve realized that a district attorney can adopt a fundamentally different moral compass and conception of justice. While traditional “law and order” prosecutors possess a moral, legal and political compass that sharply distinguishes between victims and perpetrators, I’d argue that truly progressive prosecutors recognize that “<a href="https://www.sciencedirect.com/science/article/pii/S2352250X17300611">hurt people hurt people</a>” and refuse to subordinate the values of restoration, rehabilitation and redemption to those of retribution, retaliation and revenge.</p>
<p>These two sets of values can collide. Many entrenched judges, prosecutors, police chiefs, police unions and legislators have loudly opposed – or have actively resisted – this shift to restoration and redemption. </p>
<p>Progressive prosecutors, <a href="https://www.latimes.com/politics/story/2019-08-02/once-tough-on-crime-prosecutors-now-push-progressive-reforms">according to U.S. Attorney General William Barr</a>, are “undercutting the police, letting criminals off the hook, and refusing to enforce the law.” In a December rally, President Trump <a href="https://www.phillyvoice.com/donald-trump-philadelphia-district-larry-krasner-worst-rally-hershey/">singled out Krasner</a>, calling him “the worst district attorney,” one who “lets killers out almost immediately.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308015/original/file-20191219-11900-ohcvmg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Philadelphia District Attorney Larry Krasner has drawn the ire of President Trump.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Safe-Injection-Sites-Philadelphia/e6ae0e58bc87427499f0874dd7290182/58/0">AP Photo/Matt Rourke</a></span>
</figcaption>
</figure>
<p>The experience of Aramis Ayala, the state attorney for the 9th Judicial Circuit Court of Florida, is a classic example of the obstacles these new prosecutors can face. After being <a href="https://www.orlandosentinel.com/politics/os-primary-state-attorney-judges-20160829-story.html">elected in 2016</a>, she announced that she would no longer seek the death penalty for any defendants tried by her office. Florida Gov. Rick Scott <a href="https://theintercept.com/2019/12/03/death-penalty-reform-prosecutors/">responded by reassigning 24 aggravated murder cases</a> to another state attorney who was amenable to the death penalty. </p>
<p>Ayala sued to have the cases returned to her jurisdiction. <a href="https://www.npr.org/sections/thetwo-way/2017/09/01/547985395/after-losing-in-court-florida-anti-death-penalty-prosecutor-charts-way-forward">She lost</a>.</p>
<h2>What changed?</h2>
<p>Nonetheless, progressive prosecutors would have never attained power in the first place if their views didn’t resonate with voters. </p>
<p>Michelle Alexander’s 2010 book, “<a href="https://books.google.com/books/about/The_New_Jim_Crow.html?id=reDzBZ3pXqsC">The New Jim Crow</a>,” deserves some credit for changing the way activists thought about crime and punishment. Alexander cast mass incarceration as a civil rights crisis by showing that people didn’t simply end up in jail because they were bad people who made poor choices. Nor did prison populations explode simply because there were more crimes being committed. Instead, mass incarceration was closely intertwined with race, poverty and government policy. </p>
<p>Among civil rights activists, issues like affirmative action in higher education had been consuming a lot of time, energy and resources. Alexander’s book helped redirect attention to racialized mass incarceration as a main battlefront in U.S. race relations. </p>
<p>Since its formation in 2013, the Black Lives Matter movement has made criminal justice reform a centerpiece of their activism. In Los Angeles, for example, the local chapter <a href="https://www.nytimes.com/2019/06/21/us/jackie-lacey-george-gascon-district-attorney.html">has led weekly demonstrations for over two years</a> in front of the Hall of Justice. They’re protesting Los Angeles County District Attorney Jackie Lacey for failing to adequately address police misconduct.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/307968/original/file-20191219-11919-s2fv0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters gather outside the Hall of Justice in Los Angeles in May 2018.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Police-Shootings-California-Activists/11a9efe668ae40ada50934c92725bf4b/19/0">AP Photo/Damian Dovarganes</a></span>
</figcaption>
</figure>
<p>Lacey, who is up for reelection, faces two opponents. Both of them – former San Francisco District Attorney George Gascón and former public defender Rachel Rossi – are running on progressive platforms.</p>
<p>In March, we’ll see if the Los Angeles County District Attorney’s office – the nation’s largest county-wide prosecutorial agency – will be the latest to join the progressive prosecutor movement.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128515/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jody D. Armour does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>More and more district attorney candidates are running on reversing the government’s traditional approach to crime and punishment. And they’re winning.Jody D. Armour, Roy P. Crocker Professor of Law, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1214082019-08-13T11:16:24Z2019-08-13T11:16:24ZNew laws give victims more time to report rape or sexual assault – even Jeffrey Epstein’s<p>The #MeToo movement seems to be having a positive effect on sexual assault and rape victims’ willingness to report the crimes against them.</p>
<p>In 2017, <a href="https://www.bjs.gov/content/pub/pdf/cv17.pdf">40.4% of victims of rape or sexual assault in the U.S. reported the crime to police, up from 23.2% in 2016</a>.</p>
<p>New laws being passed around the country may increase these numbers even more by giving victims more time to seek justice in either criminal or civil court.</p>
<p>In 2019 alone, 20 states and the District of Columbia passed reforms, often despite <a href="https://cruxnow.com/church-in-the-usa/2018/03/22/waiving-limitations-on-civil-abuse-suits-called-unfair-catastrophic/">opposition from the Catholic Church</a>, which has been <a href="https://www.businessinsider.com/r-as-pope-visit-nears-us-sex-victims-say-church-remains-obstacle-to-justice-2015-9">facing sex abuse allegations for decades</a>.</p>
<p>A new law in New York state, the <a href="https://www.democratandchronicle.com/story/news/politics/albany/2019/02/14/child-victims-act-four-things-know-new-law-new-york/2868643002/">Child Victims Act</a> allows those who were victims of <a href="https://www.law.com/newyorklawjournal/2019/03/22/suits-for-sexual-abuse-deadlines-and-statutes-of-limitations/">sexual assault as a minor</a> more time to report crimes – until age 28. The law also allows more time for victims to sue alleged perpetrators or negligent institutions – until age 55. Previously, the age limit for both types of cases was 23 with <a href="https://www.democratandchronicle.com/story/news/politics/albany/2019/02/14/child-victims-act-four-things-know-new-law-new-york/2868643002/">an exemption only for the most serious felonies</a>. </p>
<p>The law also opens up a one-year window for victims of any age to file civil law suits, no matter how long ago the abuse occurred. This window opens on Aug. 14.</p>
<p>Some states have gone even further. Last month, my home state of <a href="https://thehill.com/homenews/state-watch/455024-illinois-eliminates-statue-of-limitations-for-sex-crimes">Illinois became the eighth state to completely eliminate statutes of limitation for sex crimes</a>. </p>
<p><a href="https://www.american.edu/spa/faculty/jpalmer.cfm">As a scholar of gender-based violence</a> currently studying the <a href="https://www.american.edu/spa/news/palmer-fellowship.cfm">legal needs of survivors of sexual assault</a>, I believe that these reforms may help some victims find closure. </p>
<p>However, without examining why someone might wait decades to report a sexual assault, why sexual offenders are often not held accountable, and why so few <a href="https://thehill.com/opinion/civil-rights/384174-there-is-no-excise-for-not-fully-funding-the-rape-prevention-and">resources are devoted to rape prevention</a>, I believe that increasing – but not eliminating – time limits will not help most victims heal or access justice.</p>
<h2>Barriers to reporting sexual assault</h2>
<p>There are many reasons victims <a href="https://ocrsm.umd.edu/files/Why-Is-Sexual-Assault-Under-Reported.pdf">choose not to report</a> an attack immediately, or ever. </p>
<p>In a <a href="https://tandfonline.com/doi/abs/10.1080/19407882.2017.1367696?af=R&journalCode=uwhe20">recent study on sexual assault disclosure among college students</a>, my co-author Noelle St. Vil and I found that 72% of victims told someone about the sexual assault, but only 6% reported to law enforcement. Victims were more likely to report if they were injured or their attacker was a stranger. This type of sexual assault is also the most likely to result in a conviction, but it is <a href="https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4594">the least common type</a> of assault.</p>
<p>Recent events, like Dr. Christine Blasey-Ford’s testimony before the Senate in September 2018, meant that <a href="https://www.nbcnews.com/politics/politics-news/during-kavanaugh-ford-hearing-calls-sexual-assault-hotline-spiked-201-n914811">calls to sexual assault hotlines spiked over 200%</a>. Statutes of limitations meant that most of those callers <a href="https://www.revelist.com/feminism/statute-of-limitations-rape/4429/arkansas-six-years-for-firstdegree-offenses-three-years-for-second-third-and-fourth/4">likely had no legal recourse</a> open to them.</p>
<p>The new law in New York state addresses that for many victims. It will also likely mean that <a href="https://www.reuters.com/article/us-people-jeffrey-epstein-lawsuits/lawyers-say-epstein-victims-to-sue-financiers-estate-this-week-idUSKCN1V10LF">more civil law suits will be filed against the estate of Jeffrey Epstein</a> who died in federal jail Aug. 10 awaiting trial on criminal charges of sexually abusing and trafficking girls over the past two decades. </p>
<h2>‘Leaky pipeline’</h2>
<p>More victims may be reporting and suing, but many studies have shown that the criminal legal system is a “<a href="https://nyu.universitypressscholarship.com/view/10.18574/nyu/9780814707937.001.0001/upso-9780814707937-chapter-004">leaky pipeline</a>” where impunity for sexual offenders is common.</p>
<p>According to a 2018 <a href="http://www.startribune.com/denied-justice-series-when-rape-is-reported-and-nothing-happens-minnesota-police-sexual-assault-investigations/487400761/">investigative report</a> that analyzed 1,300 sexual assault cases in Minnesota, 338 of these cases were sent to prosecutors by law enforcement. Charges were filed in 156 cases and only <a href="http://www.startribune.com/minnesota-rape-cases-rejected-by-the-prosecution-denied-justice-special-report-part-five/497700641/">91 of the original 1,300 resulted in a conviction</a>. </p>
<p><a href="http://www.startribune.com/five-factors-that-can-determine-the-fate-of-a-sexual-assault-case/501637071/">Among assaults</a> that were reported more than two days after the incident, only 5% resulted in conviction. Rape cases without evidence from a sexual assault forensic exam resulted in conviction just 3% of the time. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=468&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=468&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=468&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=588&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=588&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=588&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rape cases without forensic exam evidence result in conviction 3% of the time.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Rape-Kits-Backlog/13fd06981c7e4e318f283eb34ddc53f9/2/0">AP/Pat Sullivan</a></span>
</figcaption>
</figure>
<p>In Epstein’s 2019 criminal case, <a href="https://www.washingtonpost.com/nation/2019/08/10/we-need-answers-lots-them-whats-known-whats-next-after-jeffrey-epsteins-death/">which won’t proceed because of his death</a>, there were more than <a href="https://www.forbes.com/sites/lisettevoytko/2019/07/31/jeffrey-epstein-could-spend-year-in-jail-before-trial/#4806b4ec3a18">1 million pages of evidence</a> against him, including photos and victim testimonies.</p>
<p>It is more typical for cases to have little-to-no evidence, especially if it is years or decades after an attack.</p>
<h2>Civil vs. criminal options for victims</h2>
<p>In criminal court, the standard for conviction is to demonstrate that the abuse happened <a href="https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/">“beyond a reasonable doubt</a>.” That’s difficult to do when victims do not report promptly or when there is no DNA collected or evidence of injury.</p>
<p>In the criminal system, a <a href="https://www.womenslaw.org/laws/preparing-court-yourself/court-system-basics/overview-civil-vs-criminal-law">conviction means</a> the defendant serves time in prison or jail, is put on probation or must register as a sex offender. But once charges are filed, the case is not in the victim’s control.</p>
<p>New York’s Child Victims Act, and similar reforms in other states, opens the door for more victims to pursue civil law suits instead of reporting to police. In civil cases, it has to be established that it is <a href="https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/">“more likely than not”</a> that the abuse occurred. <a href="https://www.wcsap.org/sites/default/files/uploads/working_with_survivors/advocacy/survivors_guide_to_filing_civil_lawsuit_2004.pdf">Victims can file suits to seek</a> compensation for medical, legal or mental health costs or even gaps in employment due to depression or anxiety. </p>
<p>In 2002, California was the first state to offer a one-year window for victims to come forward in cases where the statue of limitations had run out. As a result, <a href="https://www.cbsnews.com/news/new-state-laws-open-door-to-decades-old-child-sex-abuse-cases/">nearly US$1 billion was paid in civil lawsuit settlements by churches and insurance companies</a>.</p>
<p>In many states, including New York, victims can also sue institutions like <a href="https://www.nytimes.com/2019/05/23/us/rape-victims-kits-police-departments.html">police departments</a>, <a href="https://www.usatoday.com/story/news/investigations/2019/08/05/boy-scout-sex-abuse-claims-exclusive-lawsuit/1899606001/">the Boy Scouts of America</a> and even <a href="https://www.axios.com/catholic-priests-sexual-abuse-victims-sue-vatican-d092ccc0-731b-4e18-855e-4d9b1c3d0797.html">the Vatican</a>.</p>
<p>Attorneys representing some of Epstein’s victims intend to proceed with filing suits against his estate, and <a href="https://www.miamiherald.com/news/state/florida/article233748362.html">it’s possible that his assets could be used for victim restitution</a>. </p>
<p>Civil suits can be <a href="https://www.huffpost.com/entry/victims-sexual-assault-come-forward-justice_n_6294152">emotionally taxing for victims, costly and time-consuming</a>, but the civil process offers victims more control over the case, including the ability to withdraw it.</p>
<p>Civil legal attorneys can also help victims with concrete needs <a href="https://law.lclark.edu/live/files/6469-rights-and-remedies-meeting-the-civil-legal-needs">related to housing, employment, immigration issues or educational access</a>. </p>
<h2>The cost of sexual assault</h2>
<p>Some victims who take advantage of the Child Victims Act may be believed for the first time and <a href="https://onlinelibrary.wiley.com/doi/full/10.1046/j.1440-1819.1998.0520s5S145.x">that may help them heal from their trauma</a>. But for many, statutes of limitation reforms are too late. </p>
<p>Every American rape <a href="https://doi.org/10.1016/j.amepre.2016.11.014">takes an estimated $122,461</a> out of the economy over a victim’s lifetime, with the losses related to criminal justice costs, health impairment and loss of productivity. Over the nation’s population, that adds up to $3.1 trillion. Serious investments in prevention could substantially reduce these costs, and <a href="https://www.miamiherald.com/news/state/florida/article233748362.html">perhaps a foundation could use Epstein’s assets to do just that</a>. And one day, perhaps #MeToo will be #NotNeeded.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/121408/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane E. Palmer's research on the civil legal needs of survivors of sexual assault is funded by a Victim Research-to-Practice Fellowship from the Center for Victim Research. </span></em></p>Part of a law that goes into effect in New York state on Aug. 14 allows victims more time sue in civil court. Epstein’s victims can still go after his estate.Jane E. Palmer, Professorial Lecturer, Department of Justice, Law & Criminology, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1204802019-07-18T11:34:08Z2019-07-18T11:34:08ZWhy the federal government isn’t prosecuting the officer who choked Eric Garner<figure><img src="https://images.theconversation.com/files/284556/original/file-20190717-147299-18lnqhb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gwen Carr, Eric Garner's mother, says the federal government should have filed charges.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Police-Chokehold-Death/8e51a7d7c1d94b9bb6ededf7bdc8b689/2/0">AP Photo/Bebeto Matthews</a></span></figcaption></figure><p>The Justice Department won’t file federal charges against the New York City police officer who put <a href="https://www.justice.gov/usao-edny/pr/statement-united-states-attorney-richard-p-donoghue">Eric Garner</a> into <a href="https://www.nytimes.com/2019/05/15/nyregion/eric-garner-death-daniel-pantaleo-chokehold.html">the chokehold that led to his death</a>. With the statute of limitations having run out, the case, legally, is closed.</p>
<p>The decision, announced almost exactly five years after Garner was pronounced dead following a confrontation with police officers in Staten Island on July 17, 2014, has sparked <a href="https://www.npr.org/2019/07/17/742473964/5-years-after-eric-garners-death-activists-continue-fight-for-another-day-to-liv">renewed objections</a> from his relatives, activists and politicians.</p>
<p>Every officer involved has remained on the force, and no criminal charges have been filed. <a href="https://abcnews.go.com/US/judge-determine-future-nypd-cop-accused-killing-eric/story?id=63502832">Daniel Pantaleo</a>, the officer caught on video with his arm around Garner’s neck, was assigned to desk duty, but has stayed on the department’s payroll and even received an <a href="https://www.politico.com/states/new-york/albany/story/2016/09/officer-in-eric-garner-death-boosts-overtime-pay-105359">increase in his overtime pay</a>. </p>
<p><a href="https://www.nytimes.com/2019/05/15/nyregion/eric-garner-death-daniel-pantaleo-chokehold.html">Garner’s death</a> was brutal, but as a former federal prosecutor and a <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=893598">criminal procedure professor</a> who studies how prosecutors handle police violence cases, the lack of federal charges doesn’t surprise me. </p>
<p>According to criminal justice professor <a href="https://scholar.google.com/citations?user=rxOWsY4AAAAJ&hl=en&oi=ao">Philip Stinson</a>, local prosecutors are often <a href="https://www.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html">reluctant to prosecute</a> the officers they work with to investigate cases. Reporting by the Marshall Project suggests they may not want to anger the police unions they often <a href="https://www.themarshallproject.org/2018/05/23/prosecutor-elections-now-a-front-line-in-the-justice-wars">count on for political support</a>. And <a href="https://supreme.justia.com/cases/federal/us/490/386/">existing law</a> gives the police the benefit of the doubt in most situations. Based on <a href="https://theconversation.com/how-the-justice-system-fails-us-after-police-shootings-51978">my research</a>, it seems that this is just how the justice system works.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284554/original/file-20190717-147284-1u0ywqx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New York City police officer Daniel Pantaleo allegedly used a banned chokehold in the July 2014 death of Eric Garner.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Police-Chokehold-Death/6cae5301fcd04168826004a0b2969454/29/0">AP Photo/Eduardo Munoz Alvarez</a></span>
</figcaption>
</figure>
<h2>Obstacles to prosecution</h2>
<p>The case’s basic details are not contested. Pantaleo, who is white, was among a group of officers who approached Eric Garner, who was black, during a routine arrest for selling <a href="https://doi.org/10.1016/j.pmedr.2018.09.016">untaxed, loose cigarettes</a>.</p>
<p>The encounter, which <a href="https://www.youtube.com/watch?v=CWbwZz2L2Kg">a bystander shot using his phone</a> and the city’s medical examiner <a href="https://www.npr.org/sections/thetwo-way/2014/08/01/337177619/nyc-man-s-chokehold-death-was-a-homicide-medical-examiner-says">ruled a homicide</a>, soon turned contentious. It culminated with Pantaleo taking Garner down to the pavement with his arm wrapped around his neck. Pantaleo is seen shortly afterward on the video pressing down on Garner’s head as other officers crowded around him.</p>
<p>A few months after Garner’s death, the Staten Island district attorney announced that he had presented the case to the <a href="https://www.npr.org/sections/thetwo-way/2014/12/03/368249828/reports-nyc-grand-jury-does-not-indict-officer-in-chokehold-case">grand jury</a>, but did not obtain an indictment. </p>
<p>A public <a href="https://theconversation.com/how-the-justice-system-fails-us-after-police-shootings-51978">outcry ensued</a>. Garner’s dying words, “I can’t breathe,” became a rallying cry at <a href="https://doi.org/10.1177%2F1095796015620171">#BlackLivesMatter protests</a>.</p>
<p>But the fact is that it is extremely difficult to bring charges against on-duty cops for excessive force.</p>
<p>The Supreme Court ruled in 1989 that in police use-of-force cases, allowance must be made “for the fact that police officers are <a href="https://supreme.justia.com/cases/federal/us/490/386/">often forced to make split-second judgments</a> – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” </p>
<p>Ever since, few juries have found police officers guilty of using excessive force. Since 2005, <a href="https://www.nbcnews.com/news/nbcblk/police-officers-convicted-fatal-shootings-are-exception-not-rule-n982741">only 35 officers have been found guilty</a> of charges related to killing civilians. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=829&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=829&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=829&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1042&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1042&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284559/original/file-20190717-147318-acpokt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1042&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A sign and plaque near where Eric Garner had a deadly encounter with the police in the Staten Island borough of New York City.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Police-Chokehold-Death/bbc5132a3f9a4e0eb62056bdd8f1e837/4/0">AP Photo/Mark Lennihan</a></span>
</figcaption>
</figure>
<h2>Federal civil rights</h2>
<p>Because of the Constitution’s protection against <a href="https://www.law.cornell.edu/wex/double_jeopardy">double jeopardy</a>, which prevents anyone from being charged twice for the same crime, people aren’t usually prosecuted more than once for a single incident. But because U.S. law considers the states and the federal government to be <a href="https://www.supremecourt.gov/opinions/18pdf/17-646_d18e.pdf">legally independent jurisdictions</a>, the Justice Department can indict an officer who has previously been charged under state law, even if he was acquitted. </p>
<p>When excessive force prosecutions against police officers don’t result in a conviction at the state level, the local U.S. attorney’s office may indict the officers for violating a person’s civil rights. This happened most notably in 1991 in the case of <a href="https://ktla.com/2019/07/08/barry-kowalski-who-won-convictions-in-rodney-king-civil-rights-case-dies-at-74/">Rodney King</a>, the black motorist who was beaten by Los Angeles police officers, and recently after the South Carolina mistrial of police officer Michael Slager, for shooting <a href="https://www.nbcnews.com/storyline/walter-scott-shooting/walter-scott-shooting-michael-slager-ex-officer-sentenced-20-years-n825006">Walter Scott</a>, another unarmed black man, in the back. </p>
<p>But the type of proof needed to bring a federal civil rights case is much more demanding than for a state criminal case. While there are numerous state charges that might be brought against an <a href="https://www.vox.com/identities/2016/8/13/17938170/us-police-shootings-gun-violence-homicides">officer who causes the death of a civilian</a>, from murder to manslaughter to reckless endangerment to assault, there is only one route for a civil rights case. </p>
<p>In those cases, prosecutors must prove that officers used <a href="https://www.nij.gov/topics/law-enforcement/officer-safety/use-of-force/pages/welcome.aspx">excessive force</a> against a person, generally defined as force that was clearly unreasonable in the circumstances. In addition, they have to prove that the officer’s actions were “<a href="https://www.justice.gov/crt/law-enforcement-misconduct">willful</a>.”</p>
<p>And willfulness is “<a href="https://www.cnn.com/2019/07/16/politics/eric-garner-william-barr-nypd-officer-daniel-pantaleo/index.html">the highest standard of intent</a> imposed by law,” as the U.S. Attorney in Brooklyn, Richard P. Donoghue, said in his public statement about Pantaleo. “An officer’s mistake, fear, misperception or even poor judgment does not constitute willful conduct under federal criminal civil rights law.” </p>
<h2>A narrow path</h2>
<p>Many news outlets reported that the decision to close the Garner case happened once U.S. Attorney General William Barr <a href="https://nypost.com/2019/07/16/ag-barr-made-decision-to-not-bring-charges-against-eric-garner-cop-official/">ordered the case dropped</a>, overruling the Civil Rights Division <a href="https://www.cnn.com/2019/07/16/politics/eric-garner-william-barr-nypd-officer-daniel-pantaleo/index.html">in his own department</a>. </p>
<p>Activists have questioned Barr’s <a href="https://www.aclu.org/blog/national-security/william-barr-has-long-history-abusing-civil-rights-and-liberties-name">civil rights record</a>, noting that while serving as President George H.W. Bush’s attorney general, Barr released a report titled “<a href="https://www.ncjrs.gov/pdffiles1/Digitization/139583NCJRS.pdf">The Case for More Incarceration</a>.” Barr’s predecessor, Jeff Sessions, <a href="https://www.propublica.org/article/why-jeff-sessions-final-act-could-have-more-impact-than-expected">quashed the Justice Department’s attempts to reform policing</a>.</p>
<p>Still, I’m not sure the outcome would have been different with someone else in the White House. </p>
<p>In fact, disagreements on whether the case could be successfully prosecuted in federal court also snarled proceedings <a href="https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-daniel-pantaleo.html">during the Obama administration</a>. And there was only ever a narrow path to prosecution.</p>
<p>When Donoghue gave a detailed explanation for his decision, he took an unusual step. Most of the time, when officers don’t get charged, the reasons are shrouded in secrecy. Instead, Donoghue gave a <a href="https://newyork.cbslocal.com/2019/07/16/eric-garner-federal-civil-rights-charges/">painstaking explanation of the ambiguities</a> in the video, the <a href="http://thechiefleader.com/news/news_of_the_week/city-medical-examiner-rebuts-pba-contention-about-garner-s-death/article_51d36d86-fa34-11e8-baae-eb6888c5f56e.html">conflicting medical expert reports</a>, and the reasons he believed the high standard of intent could not be proved beyond a reasonable doubt. </p>
<p>I once served in the United States Attorney’s Office for the Eastern District of New York, which Donoghue now runs. I hate the fact that many people will never feel that justice was done in Eric Garner’s tragic and avoidable death.</p>
<p>Yet I’m not sure that I could have reached a different conclusion myself.</p><img src="https://counter.theconversation.com/content/120480/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caren Morrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US legal system often gives the police the benefit of the doubt.Caren Morrison, Associate Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1125942019-02-28T00:23:38Z2019-02-28T00:23:38ZIs Sir John A. Macdonald to blame for the Wilson-Raybould affair?<figure><img src="https://images.theconversation.com/files/261355/original/file-20190228-150721-iwqgit.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sir John A. Macdonald was not only Canada's first prime minister, he was the first justice minister and attorney general. Jody Wilson-Raybould has suggested the two roles should be split.</span> <span class="attribution"><span class="source">National Archives of Canada/THE CANADIAN PRESS/Adrian Wyld</span></span></figcaption></figure><p>In her bombshell testimony before a House of Commons committee, Jody Wilson-Raybould, Canada’s former minister of justice and attorney general, described repeated attempts <a href="https://www.thestar.com/politics/federal/2019/02/27/jody-wilson-raybould-says-pressure-in-snc-lavalin-affair-was-inappropriate.html">at “political interference” by top government officials.</a></p>
<p>She told of “veiled threats” about her job and dark warnings about being headed for “a collision” with Prime Minister Justin Trudeau over the issue of helping Québec engineering firm SNC-Lavalin avoid a bribery trial.</p>
<p>Less dramatically — but with the potential to spark a major restructuring of her former ministry — Wilson-Raybould stated that she has long believed Canada should re-examine the conjoined federal department headed by the minister of justice and attorney general and consider “whether or not those two roles should be bifurcated.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1100895316339974144"}"></div></p>
<p>She added that a new structure could see an attorney general who would “not sit around the cabinet table,” referencing the British model that separates the justice minister and attorney general roles.</p>
<p>In the U.K., the office of the <a href="https://www.gov.uk/government/organisations/attorney-generals-office">Attorney General</a>, a non-cabinet post, is separate from the cabinet position of <a href="https://www.gov.uk/government/ministers/secretary-of-state-for-justice">Lord Chancellor and Secretary of State for Justice</a>.</p>
<p>Splitting the two jobs in Canada is an idea that was raised recently by University of Ottawa law professor Adam Dodek, who advanced a timely and <a href="https://www.theglobeandmail.com/opinion/article-the-impossible-position-canadas-attorney-general-cannot-be-our/">important argument</a> about what he calls an “intolerable conflict” within the combined role of minister of justice and attorney general in Canada.</p>
<p>The conjoined cabinet post, he insists, is at the heart of the Wilson-Raybould controversy.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-snc-lavalin-affair-and-the-politics-of-prosecution-111778">The SNC-Lavalin affair and the politics of prosecution</a>
</strong>
</em>
</p>
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<p>He argued it’s time to sever the political, partisan role of the minister of justice from that of the ideally “independent” attorney general — the government’s chief legal adviser and litigator, someone expected to “put aside partisan concerns” in upholding the Constitution. It seems Wilson-Raybould agrees.</p>
<h2>Don’t ignore the history</h2>
<p>This is all good fodder for serious debate. But we shouldn’t embark on potential reforms by ignoring <a href="https://www.ubcpress.ca/the-canadian-department-of-justice-and-the-completion-of-confederation-1867-78">the history</a> that led to the 1868 creation of this country’s Department of Justice and the yoking of the <a href="https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/fpd/ch03.html">minister of justice and attorney general</a> jobs in a single cabinet position.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=636&fit=crop&dpr=1 600w, https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=636&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=636&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=800&fit=crop&dpr=1 754w, https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=800&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/261142/original/file-20190227-150721-1mk7ste.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=800&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A painting of Robert Baldwin, 1855, in the U.K.’s National Portrait Gallery.</span>
<span class="attribution"><span class="source">National Portrait Gallery</span></span>
</figcaption>
</figure>
<p>Neither should we necessarily graft British appendages onto our body politic. As early as the 1840s, leading political reformers such as <a href="http://biographi.ca/en/bio/baldwin_robert_8E.html">Robert Baldwin</a> believed a policy-engaged, made-in-Canada version of attorney general “clothed with its present political character” was required “in a community like ours.”</p>
<p>Furthermore, we shouldn’t naively imagine that splitting these positions will somehow magically insulate government legal thinking from the sullying effects or pragmatic influences of politics. </p>
<p>There are, in fact, deep-rooted historical reasons why Canada has a combined minister of justice and attorney general. And as with many other contentious issues in modern Canada, to better understand this ministry we must reflect on the mixed legacy of Canada’s founding prime minister — who was also the first minister of justice and attorney general.</p>
<p>Yes, it could be argued that Sir <a href="http://biographi.ca/en/bio/macdonald_john_alexander_12E.html">John A. Macdonald</a>, so often a target for contemporary critics, is ultimately to blame for the Wilson-Raybould affair, too.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/john-a-macdonald-should-not-be-forgotten-nor-celebrated-101503">John A. Macdonald should not be forgotten, nor celebrated</a>
</strong>
</em>
</p>
<hr>
<h2>Filled the job himself</h2>
<p>Or should we credit Macdonald’s peculiar genius for statecraft — including the imperfect but practical compromise he struck between the political and legal imperatives of government — when he created the unified ministerial position in 1868 and promptly filled the job himself?</p>
<p>It’s worth noting that the ministry was formed after Washington spy <a href="https://muse.jhu.edu/article/419858/summary">George W. Brega</a> provided Macdonald with a blueprint of planned changes to the U.S. Attorney General’s office. These matched the kind of dual-role ministry Macdonald was already planning for Ottawa.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=665&fit=crop&dpr=1 600w, https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=665&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=665&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=835&fit=crop&dpr=1 754w, https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=835&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/261143/original/file-20190227-150688-zm7mae.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=835&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Hewitt Bernard in 1868 in Ottawa.</span>
<span class="attribution"><span class="source">Library and Archives Canada</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The legislation that created Canada’s justice ministry was crafted by Macdonald and his brother-in-law, <a href="http://biographi.ca/en/bio/bernard_hewitt_12E.html">Hewitt Bernard</a>, deputy attorney general at the time. The project reflected Macdonald’s understanding of 19th-century <a href="https://www.britannica.com/topic/realpolitik">realpolitik</a> and — as head of a fragile, complicated new country — his perceived need for the law of the land to be informed by, and sometimes governed by, political considerations. </p>
<p>You can hear echoes of Macdonald when Trudeau — in response to accusations of political interference in the SNC-Lavalin case — refers to his government’s commitment “<a href="https://globalnews.ca/news/4988388/justin-trudeau-snc-lavalin-jobs/">to defend jobs and to make sure that our economy is growing</a>” while simultaneously “upholding the rule of law.” </p>
<p>Unspoken (but also discernible in the government’s handling of the case) are concerns about Liberal election fortunes in Quebec — concerns referenced by Wilson-Raybould in her testimony.</p>
<p>While Macdonald often spoke about the sanctity of the law, he was a pragmatist. He excelled at working in the small spaces and along the edges of the law — in the service of the national interest, as he saw it, but also in his party’s interests.</p>
<p>In the case of <a href="https://www.thecanadianencyclopedia.ca/en/article/pacific-scandal">the Pacific Scandal</a>, Macdonald wandered well past the edge of the law. He was consequently exiled from the prime ministership for five years following allegations his government accepted election funds from a shipping magnate in exchange for the contract to build the transcontinental Canadian Pacific Railway. </p>
<h2>The realities of governing</h2>
<p>Macdonald probably spoke of the attorney general being responsible for astute legal counsel. It’s not hard to imagine he likely nodded and winked at the realities of how the business of government actually worked in his day. </p>
<p>Thus the two offices were fused then — and remain so today — because of Macdonald’s sense of how government ought to function. Canada didn’t get a joint minister of justice and attorney general “just because;” it’s the result of Macdonald’s very conscious decisions, and his acceptance of the idea that, of course, legal decisions are political.</p>
<p>The dual position has endured under 22 subsequent prime ministers, both Conservative and Liberal. </p>
<p>But times have changed. As Prof. Dodek rightly points out, conflict-of-interest rules and other guiding principles of good governance have evolved. We may well be able to fashion a better ministerial structure in the 21st century than was envisioned 150 years ago.</p>
<p>But even if we think Macdonald rather cynical, we may find that keeping the justice and attorney general jobs together under one minister is still the best arrangement for this country.</p>
<p>In any case, we shouldn’t approach this worthwhile debate blind to the peculiarities of Canadian history nor swayed too much by the fiction of an apolitical attorney general — whether wearing one hat or two.</p><img src="https://counter.theconversation.com/content/112594/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sir John A. Macdonald fused the jobs of justice minister and attorney general as Canada’s first prime minister. So is he partly to blame for the SNC-Lavalin controversy?Randy Boswell, Associate Professor, School of Journalism and Communication, Carleton UniversityJonathan Swainger, Professor of History, University of Northern British ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1117782019-02-19T22:10:34Z2019-02-19T22:10:34ZThe SNC-Lavalin affair and the politics of prosecution<figure><img src="https://images.theconversation.com/files/259613/original/file-20190218-56220-1af7gc1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gerald Butts, principal secretary to Prime Minister Justin Trudeau, is seen on April 20, 2018. Butts resigned amid allegations that the Prime Minister's Office interfered to prevent a criminal prosecution of SNC-Lavalin.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Darren Calabrese</span></span></figcaption></figure><p>The ongoing controversy regarding the prosecution of Canadian engineering company SNC-Lavalin raises fundamental questions about how decisions to prosecute are made and what role elected politicians should have in that process. </p>
<p>The scandal has resulted in the <a href="https://www.thestar.com/politics/federal/2019/02/18/trudeaus-principal-secretary-gerald-butts-resigns-amid-snc-lavalin-furor.html">resignation of Prime Minister Justin Trudeau’s principal secretary, Gerald Butts,</a> amid allegations the Prime Minister’s Office pressured its former attorney general, Jody Wilson-Raybould, to resolve criminal charges against SNC-Lavalin by a deferred prosecution agreement.</p>
<p>Michael Wernick, clerk of the Privy Council Office and Canada’s top civil servant, <a href="https://nationalpost.com/news/politics/privy-council-clerk-michael-wernick-adamant-no-undue-pressure-exerted-on-wilson-raybould">has also weighed in,</a> testifying to a House of Commons committee that no undue pressure was exerted on Wilson-Raybould.</p>
<p>My research investigates how accountability, transparency and control of prosecutorial discretion can be structured, an interest inspired by my work as a former prosecutor in British Columbia. In relation to political control over individual decisions, my findings suggest that the risks of partisan political influence on the process are significant.</p>
<p>In Canada, even if there is sufficient evidence to proceed, prosecution must be in the public interest. This test is highly discretionary and depends on the facts of the case. </p>
<p>Looking at <a href="https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p2/ch03.html">publicly available policies</a> from jurisdictions throughout England, Canada and Australia, I found three categories of factors that influence the decision to prosecute: the seriousness of the offence, the expected results of the prosecution (the sentence, for example) and the effects of the prosecution itself (harm to a vulnerable victim, for example).</p>
<h2>Assessing the impact</h2>
<p>The decision may involve issues of broad public policy or specialized government knowledge, such as an impact on foreign relations or, in the SNC-Lavalin case, the effects of prosecuting a large company that employs <a href="https://www.cbc.ca/news/canada/montreal/snc-lavalin-quebec-prosecution-1.5018472">thousands of people</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=969&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=969&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=969&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1217&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1217&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259618/original/file-20190218-56212-1d50t7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1217&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lucien Rivard arrives to testify at the Dorion inquiry in January 1965 in Montréal. Rivard triggered a scandal in Lester Pearson’s Liberal government in the 1960s.</span>
<span class="attribution"><span class="source">(CP PICTURE ARCHIVE)</span></span>
</figcaption>
</figure>
<p><a href="https://www.canlii.org/en/ca/scc/doc/2002/2002scc65/2002scc65.html?resultIndex=1">The Supreme Court of Canada has recognized</a> it would be unconstitutional for the partisan interests of a political party to determine who is or isn’t prosecuted for an alleged crime. </p>
<p>The dangers of partisan political influence is that, simply put, the allies of a political party may be shielded from prosecution and their enemies may be subject to it. </p>
<p>This risk materialized in Canada most notoriously in 1964 during <a href="https://www.theglobeandmail.com/news/national/montreal-mobster-nearly-sank-liberals/article4131433/">what was known as the Rivard affair</a>. </p>
<p>Lucien Rivard faced extradition to the United States on charges of drug trafficking. Senior ministerial officials in Lester B. Pearson’s government pressured counsel for the U.S. to agree to Rivard’s release on bail, including an offered bribe of $20,000. The attorney general of Canada, Guy Favreau, resigned following an inquiry that criticized his decision not to prosecute any of the officials involved.</p>
<h2>The Shawcross Doctrine</h2>
<p>By their nature, decisions on whether to proceed with a prosecution involve allegations that are not tested in court, nor is the full record available for public review. So how can the public be confident that partisan political interests do not affect the decision?</p>
<p>The Shawcross Doctrine is a statement in the House of Lords in 1951 by <a href="https://www.telegraph.co.uk/news/obituaries/1435769/Lord-Shawcross.html">Hartley Shawcross, the attorney general of England at the time</a>. It asserts that the decision to prosecute is that of the attorney general alone. Wernick, in fact, mentioned the doctrine <a href="https://www.ctvnews.ca/politics/top-bureaucrat-denies-wilson-raybould-faced-inappropriate-pressure-on-snc-lavalin-affair-1.4306493">in his recent testimony.</a></p>
<p>The doctrine recognizes, however, that the process of determining if a prosecution is in the public interest cannot always be made by the prosecutor in isolation. But Shawcross emphasized that the attorney general should control that process:</p>
<blockquote>
<p>“In order to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the government …. the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist and must not consist, in telling him what the decision ought to be. The responsibility for the eventual decision rests upon the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.”</p>
</blockquote>
<p>The Shawcross Doctrine has been widely accepted throughout English common-law countries. However, it cannot be compared to law, either legislation or case law. Rather, it’s a description of the understandings and practice that a <a href="https://lop.parl.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf">constitutional convention</a> flows from.</p>
<p>There are differences between the position of England’s attorney general in the 1950s and in Canada today. That includes the Canadian attorney general’s position in the cabinet and the introduction of a <a href="https://www.ppsc-sppc.gc.ca/eng/dpp-dpp/index.html">federal Director of Public Prosecutions</a>, whose office handles most prosecutorial decisions. But the attorney general retains the power to issue directions.</p>
<h2>Prosecution & politics: What’s the practice?</h2>
<p>Surprisingly few cases explore the intersection between politics and prosecution. </p>
<p>Notable exceptions include the <a href="https://spartacus-educational.com/TUcampbellJ.htm">Campbell affair of 1924</a> (which may have contributed to the fall of England’s labour government), the 1977 resignation of <a href="https://www.theaustralian.com.au/in-depth/cabinet-papers/legal-chief-quit-over-meddling/news-story/4fa39d46e69876add9a2f86028780267">Australian attorney general Bob Ellicott</a> (who cited attempts by the government to control his discretion) and the 2007 termination of an investigation into the conduct of BAE Systems Plc, a weapons manufacturer, by the U.K.’s Serious Fraud Office on the grounds that proceeding could damage the country’s national security interests. </p>
<p>Each of these cases has been studied by scholars (see the work of professors John Edwards and Philip Stenning <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/clwqrty55&div=27&id=&page=">in particular</a>) for what they can tell us about practice at a particular time and place. But the list of cases that reach the public in full detail is a short one. </p>
<p>The controversy surrounding the SNC-Lavalin prosecution is in its early days and hopefully more information will emerge. </p>
<p>But scrutiny of the relationship between politics and prosecution is critical because practice, not doctrines, is the foundation of prosecutorial independence from partisan politics. With that independence rests the integrity of the entire justice system.</p><img src="https://counter.theconversation.com/content/111778/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victoria Colvin was formerly a prosecutor with the Office of the Attorney-General of British Columbia, Criminal Justice Branch. She worked with Jody Wilson-Raybould in the Vancouver Crown Counsel Office from 2001-2002.</span></em></p>The SNC-Lavalin affair raises fundamental questions about how decisions to prosecute are made, and what role elected politicians should have in that process – if any at all.Victoria Colvin, Lecturer in Law, University of WollongongLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/992362018-07-05T15:17:37Z2018-07-05T15:17:37ZCollapsed bank CEO cases point to weaknesses in Nigeria’s justice system<figure><img src="https://images.theconversation.com/files/226231/original/file-20180705-122271-pps7u6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Nearly ten years ago the Central Bank of Nigeria conducted a deep assessment of the country’s banks. The 2009 exercise exposed large-scale fraud committed by a number of CEOs.</p>
<p>To save the banking system from collapse, the Central Bank took over a number of institutions and spent <a href="http://w1219.cbn.gov.ng/OUT/SPEECHES/2010/THE%20NIGERIAN%20BANKING%20INDUSTRY%20WHAT%20WENT%20WRONG%20AND%20THE%20WAY%20FORWARD_FINAL_260210.PDF">billions</a> saving others. In addition, criminal charges were laid against five CEOs for offences which included fraud, market manipulation, concealment and grant of credit facilities without adequate security. </p>
<p>Only one case has been <a href="https://www.bbc.co.uk/news/world-africa-11506421">prosecuted</a> successfully. The others appear to be stuck in an unending cycle of dismissals, appeals and re-trials. </p>
<p>The bank saga and the failure to bring the bank executives to justice underscore the fact that the Nigerian justice system isn’t working. The problems – the subject of a great deal of discussion – range from judicial corruption to a lack of judicial independence to delays in the justice system.</p>
<p>The cases of the bank executives provide a useful case study through which to examine the weaknesses of the Nigerian judicial system. These include the capability of prosecutors and the ability of the court system, including judges, to actually bring cases to fruition. This is particularly true in corporate cases which are often difficult to prosecute under the criminal law. </p>
<h2>Judicial Corruption</h2>
<p>The fact that Nigeria has a number of <a href="https://brooklynworks.brooklaw.edu/bjil/vol31/iss1/1/">corrupt judges</a> is common knowledge in the country. Over the years, there have been various allegations of corruption in the judiciary. In 2013, two High Court judges were suspended and recommended for retirement by the National Judicial Council for <a href="http://thenationonlineng.net/njc-suspends-justices-naron-archibong-2/">misconduct bordering on corruption</a>. </p>
<p>Similarly, in 2016, a raid carried out by the Department of State Services revealed that cash worth <a href="http://www.bbc.co.uk/news/world-africa-37603857">USD$800,000</a> had been found in the homes of senior judges suspected of corruption. </p>
<p>Judicial corruption reduces public confidence in the country’s justice system. This means that suspected incidents of directors’ misconducts are less likely to be reported given the prevailing belief that justice is unlikely to be served. Similarly, it can affect the attitude of investigators and prosecutors who might have less incentive to investigate and prosecute cases diligently.<br>
While it would clearly be an exaggeration to accuse all judges in Nigeria of corruption, it is reasonable to conclude that corruption remains a problem. But since none of the judges involved in the trial of the bank executives have been accused of corruption, it’s necessary to look to other causes for the failure to bring the bank executives to book.</p>
<h2>Delays in the justice system</h2>
<p>One of the main problems in the bank executive cases has been endless delays in the judicial process. The trials’ time line tells the story. </p>
<p>Criminal proceedings started in 2009. About six years later, in 2015, the Court of Appeal <a href="https://guardian.ng/news/court-frees-banks-ex-chief-atuche-others-in-alleged-n25-7b-fraud/">struck down</a> the case against two of the executives on the basis of lack of jurisdiction of the trial court. </p>
<p>A declaration of lack of jurisdiction means that the court lacks the power to try the particular case. In itself this isn’t a bad development. After all, compliance with relevant rules on jurisdiction is essential to ensuring justice is done. But the fact that it took six years for this decision to be reached highlights severe delays in Nigeria’s court system. </p>
<p>Following the Court of Appeal’s decision, the High Court, in deference to the superior court, dismissed the pending case against the third bank executive.</p>
<p>In another turn of events, a year later, in 2016, the Supreme Court overturned the Court of Appeal’s decision and ordered a <a href="http://punchng.com/alleged-fraud-efcc-re-arraign-ex-mds-akingbola-atuche-nwosu/">re-trial</a> of the bank executives. This meant that, nearly 10 years after the initial trial, a fresh trial was started, and with it room for further appeals.</p>
<p>There is currently no end in view. While appeals and cross appeals are inevitable parts of litigation, the lengthy time spent on them is not.</p>
<p>This delay has been attributed to several factors. Initially, the trials suffered from several unwarranted <a href="http://thenationonlineng.net/will-trials-ever-end/">adjournments</a> at the request of the defence lawyers.</p>
<p>Another weak spot has been the prosecuting authority. The unit responsible for prosecuting these kinds of cases, The Economic and Financial Crimes Commission, has been severely <a href="https://www.dailytrust.com.ng/judge-berates-efcc-over-attitude-to-trials.html">criticised</a> for its inefficiencies.</p>
<p>To worsen the problem, the trial judges were <a href="http://punchng.com/ex-bank-chiefs-akingbola-atuche-nwosus-unending-nightmares/">changed</a> several times. One judge was elevated to the Court of Appeal while a few others were transferred to different divisions of the court leading to a fresh trial each time. </p>
<p>These issues significantly delayed trial proceedings. </p>
<h2>Potential inequality</h2>
<p>Another question to consider is whether the failure to successfully prosecute the directors is a reflection of the difference in the treatment of high-profile offenders versus ordinary Nigerians. </p>
<p><a href="https://www.bbc.co.uk/news/world-africa-11506421">Cecilia Ibru</a>, the only bank executive who was convicted, was sentenced to just six months in prison and required to forfeit shares and other assets worth over USD$1.2 billion. Compare this with the case of <a href="https://www.express.co.uk/news/world/624459/David-Olugboyega-Ado-Ekiti-High-Court-Nigeria-Alaba-Adeyemi">David Olugboyega</a>, an armed thief, who was sentenced to death after being found guilty of a £50 robbery. Granted that armed robbery carries the <a href="https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Nigeria">death penalty</a>,however, it seems that carting away millions of money should attract a stiffer penalty. </p>
<p>In addition, rich offenders can afford well skilled lawyers who can devise different strategies to delay, or prevent, successful prosecution. Poor offenders don’t have this benefit.</p>
<p>The recently introduced <a href="https://lawpavilion.com/blog/the-administration-of-criminal-justice-act-2015-acja/">Administration of Criminal Justice Act of 2015</a>, which aims to promote speedy dispensation of justice, promises to improve the situation. Time will tell.</p><img src="https://counter.theconversation.com/content/99236/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Oludara Akanmidu does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nigeria is failing to prosecute banking executives charged with fraud due to deep weaknesses in the system.Oludara Akanmidu, Lecturer in Law, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.