In Sunday night’s episode of Last Week Tonight, John Oliver acknowledges an essential truth about the American justice system: Prosecutors are powerful influences on how justice (or the lack thereof) is carried out, and most of us don’t know the first thing about what they actually do. “Most people know as much about their local DA as they know about their local Cheesecake Factory manager,” says Oliver. “Chances are you don’t know who they are, and if you do, it’s probably because something truly terrible has happened.”
Cheesecake aside, there are over 2,500 prosecutor offices in the United States across the local, state and federal levels who decide, for those on trial, whether you get charged, what you get charged with and what sentence you’ll face. DAs have such extensive influence that the phrase, “Prosecutors will decide,” is so overused in media coverage of criminal cases that it’s lost practically any sense of meaning. In the segment, Oliver examines the responsibilities of prosecutors, as well as the misuse of the authority granted to them in a legal system already prone to bias.
Despite the Sixth Amendment’s rosy promises of a speedy trial by a jury of one’s peers, Oliver points out that most criminal cases don’t even make it in front of a judge. “Nearly 95 percent of the cases that prosecutors decide to prosecute end up with the defendant pleading guilty,” says Oliver. Defendants are frequently coerced into taking plea deals behind closed doors, under threat of a trial penalty, in which prosecutors stack a series of charges in pursuit of a harsher sentence against the defendant if they insist on a trial by jury. For many people, even those who are innocent, a plea bargain seems much less risky than a trial in which the outcome (and potential jail time) is less certain.
In actuality, the legal system is dependent on plea bargains to keep it moving: “It’s an inadequate system that only functions if people constantly give up. It’s built on the exact same model as AT&T’s customer service hotline,” Oliver (half) jokes.
As for those five percent who do go to trial? They’re still subject to the ethics of the prosecutors, who have a bafflingly large amount of control over case evidence. While DAs are required to hand over evidence that they deem pertinent to your defense, they’re free to do so at the last minute, putting the defendant’s defense at an immediate disadvantage by impeding their ability to prepare for trial at all. Even then, in a quarter of exoneration cases, prosecutors concealed evidence. Only one prosecutor has ever served jail time for withholding exculpatory evidence during a trial: in the case, the defendant wrongfully served 25 years because of the prosecutor’s misconduct, while the prosecutor served five days out of his 10-day sentence (but, phew, also had to pay a $500 fine).
Given their lack of accountability, and the culture of bonuses and rewards for convictions, Oliver stresses the importance of researching and voting for your local prosecutor. Most DAs are elected officials, but 85 percent run unopposed. Electing reform-minded prosecutors could be, as Oliver points out, a way to effect actual change in how we address a range of legal issues and to keep prosecutors—and the power they wield—in check.
Watch Oliver discuss the topic at (even further) length below.