Prosecutorial discretion: cheer, but also watch closely

Robert Mueller is giving the nation a tutorial in how a smart prosecutor builds a case, pulling out threads and putting pressure on associated players in order to entrap the biggest offenders. "Go Mueller!" cheer those of us who, appropriately, want the truth about what the Cheato and his cast of sleazy grifters did and are still doing to our country.

But we shouldn't forget that prosecutorial discretion -- the power to decide who is charged and how people are funneled through the courts -- is at the core of how people of color and all poor people lose the theoretical protections which the constitutional legal system claims to provide. The "presumption of innocence" doesn't mean much up against an elected prosecutor who wants to prove how "tough on crime" he can be.

Angela J. Davis (another younger Davis if the name sets off a bell) is the editor of Policing the Black Man: Arrest, Prosecution and Imprisonment. She lays out the reality for most people caught up in the "justice" system.

... what goes on in the criminal justice system every day with black and brown people is police officers' incredible power and discretion on the streets to stop people, to search them, et cetera. But police officers can only bring people to the courthouse door.

It is the prosecutor who decides whether they may remain entrenched there. ... Prosecutors can decide to charge a person or not. ... that charging power, which belongs solely to the prosecutor, combined with the plea bargaining power, which also totally belongs to prosecutors, really allows them to control the criminal justice system.

Especially when you think about the fact that 95% of all cases are resolved by way of a guilty plea, right? ... the prosecutor holds all the cards. They decide whether there's gonna be a plea offer, what the plea offer's going to be, and those two powers together really give them control of this criminal justice system. ... And they make those decisions behind closed doors with absolutely no transparency. We don't know how they're making the decisions.

Those of us in San Francisco who have been seeking justice for recent victims of some of our police officers' trigger-happy habits are all too well aware that our elected prosecutor holds all the cards. George Gascon has refused to charge the police killers of Alex Nieto, Amilcar Perez-Lopez, Luis Gongora Pat, Mario Woods or Jessica Williams. His office is therefore the sole judge and jury for whether those deaths were justified; the prosecutor's version of the "facts" becomes the unquestionable truth, however implausible it may seem to the community.

So -- let's cheer Robert Mueller. May he bring these corrupt conmen who've occupied the heights of power to justice. He might preserve our democratic chance to fight another day. But also, let's remember that from the streets, prosecutors need to be watched closely. Unlike in the federal system, many local prosecutors are elected officials. Putting them on notice that they are watched can be a significant move in the long struggle for more justice in communities without privilege.