September 16, 2014 | Commentary on Civil Justice Reform, Overcriminalization

When Politics Drives Law Enforcement

One of the biggest threats to a civilized, free society occurs when prosecutors abuse their power and allow politics to drive their administration of the criminal-justice system. Two recent examples show how liberal, partisan prosecutors misused their authority and politicized justice.

In Fall River, Mass., the New York Times reports, a local county prosecutor, Sam Sutter, dropped a conspiracy charge and downgraded other criminal charges to simple civil infractions against two “environmental activists” who used a lobster boat to block a coal-laden freighter from supplying a power station. These criminals claimed they had to act to stop global climate change. After Sutter dropped or downgraded the charges, he said he did so because he agreed with their political views: “Climate change is one of the gravest crises our planet has ever faced. In my humble opinion, the political leadership on this issue has been sorely lacking.”

His arrogance seems to blind him to the fact that he is basing his prosecutorial decision purely on politics. He is also violating his duty to enforce the laws passed by the state legislature and his county government. He apparently believes that he can administer justice based on his personal political beliefs, and that he has the option of not enforcing the law against those who share those beliefs.

This is the exact opposite of how our justice system is supposed to work. Lady Justice wears a blindfold specifically to ensure that the law is equally applied to all, regardless of their political views.

What’s almost as bad as what Sutter did is the fact that he’s completely unashamed of his behavior. Worse, there has been almost no criticism of this complete perversion of his role as a prosecutor. The bottom line is that these defendants will not be prosecuted because of their politics, not because of a lack of evidence that they broke the law. In fact, one of the reasons Sutter, who calls himself a “fervent environmentalist,” dropped the charges was because the evidence was so overwhelming that he was concerned that the lawyers for the defendants might not be able to meet the legal burdens required for a successful defense.

The second example is much worse. Stuart Taylor reveals a shocking development in the secret, Star Chamberesque John Doe investigation in Wisconsin that local prosecutors were running against conservative advocacy organizations and Governor Scott Walker. The ostensible reason for the probe was that its targets were supposedly coordinating their speech about important public-policy issues. This appalling attempt to criminalize free speech was stopped by a federal court and is currently before the Seventh Circuit Court of Appeals.

Taylor writes that this investigation, which violated the civil rights of more than two dozen organizations in Wisconsin, may have been a political vendetta spurred by the wife of Milwaukee district attorney John Chisholm, the prosecutor behind this investigation.

A former prosecutor, described as “a longtime Chisholm subordinate,” says that Chisholm told him and others that his wife, a teacher’s-union steward at a local high school, was so upset over the union bill that Governor Walker sponsored and the legislature passed that she was “repeatedly moved to tears.” According to Taylor’s source, who refused to identify himself out of fear of retaliation, Chisholm said that “he felt that it was his personal duty to stop Walker from treating people like this.” The source, who professed to have admired Chisholm before this happened, stated that, “it was surprising how almost hyper-partisan he became . . . ”

If this allegation is true, then this investigation had nothing to do with Chisholm’s receiving any evidence of a violation of the law by Governor Walker or any of the other organizations and individuals who were targeted in SWAT-style raids on their homes and businesses. This investigation may have been started because the prosecutor’s wife, a union activist, was upset over a bill passed in the legislature sponsored by the governor. She apparently acted as a modern version of Lady Macbeth, who spurred her husband to commit bad deeds. There could hardly be a worse example of grotesque prosecutorial abuse and politicized law enforcement than this.

Cornell Law School professor William Jacobson, who has covered “the onslaught unleashed” by Chisholm, has noted the “obsessive nature of the investigation, and how it seemed that Chisholm found the man — Scott Walker — and was searching for the crime.” Jacobson says that that if this information is accurate, then “there needs to be an investigation of the investigators.” In fact, there “needs to be a criminal investigation of how the John Doe assault on Walker and conservatives was launched and whether politics was the motivation.”

If politics was the driving factor in the cases in Massachusetts and Wisconsin, these district attorneys should be recalled from office. Disciplinary proceedings should be initiated against them by their state bar associations, as happened to Mike Nifong, the disgraced — and eventually disbarred — prosecutor involved in the 2006 Duke University lacrosse case.

Politics has no place whatsoever in the criminal-justice system. We are a country based on the rule of law and the principle of equal protection for all citizens, regardless of who they are or what they believe. The actions of Sam Sutter and, if the allegations by a former confidant are true, of John Chisholm are abuses that damage not only the administration of justice, but the public’s confidence in the fairness, impartiality, and evenhandedness of the justice system.

 - Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in National Review Online