Introduction: Intelligence Squared U.S. (01:26)
Moderator John Donvan frames the debate about the power of prosecutors.
Debate "Housekeeping" (06:36)
Donvan introduces the panelists for and against the motion, and explains the debate format. Audience members record their preliminary votes.
For the Motion: Nancy Gertner (06:07)
Former U.S federal judge and senior lecturer at Harvard Law Nancy Gertner gives examples of a coerced plea. Approximately 90% of people in federal trials plead guilty. Defendants are often stepping stones for prosecutors seeking a higher office.
Against the Motion: David Hoffman (06:29)
Former federal prosecutor and current Sidley Austin partner David Hoffman highlights the importance and limits of prosecutorial power; the criminal justice system has various problems. He cites public corruption, crimes, and gang and gun violence.
For the Motion: Paul Butler (06:41)
Georgetown Law Professor and former federal prosecutor Paul Butler states that prosecutors have turned the U.S. into the world's leading jailer; 80% of those incarcerated are poor. He cites the Supreme Court Case Bordenkircher vs. Hayes and questions the number of minorities and drug offenders in prison.
Against the Motion: Reid Schar (06:25)
Partner at Jenner and Block and former federal prosecutor Reid Schar uses a hypothetical scenario to identify checks and balances in the criminal justice system; prosecutors do not have too much power.
Prosecutorial Leverage and Coercion (06:48)
Donvan reiterates the opening statements. Hoffman cites reasons for mandatory minimum sentences. Gertner argues that they take away judicial discretion and give more power to the prosecutors. Schar counters that mandatory minimums are a hedge on power; Butler addresses "pyramid prosecutors" and the "plea bargaining" system.
Two Sets of Defendants? (03:33)
Hoffman states that there is an imbalance of power; the criminal defense system needs more resources. Gertner counters that resources are only part of the problem.
Information Deficit (02:32)
Schar acknowledges the danger of turning over evidence to the defense, but states that there is no deficit. Butler argues that in trial, the prosecutor is the legal adviser for the grand jury; the defense is outgunned.
Multiple Legal Systems? (01:56)
Hoffman does not recognize the incentive to lock up as many people for as long as possible; he cites examples. Gertner and Butler argue that convictions are the incentive structure for prosecutors.
Grand Jury Confidentiality (02:20)
Gertner cites the case against Arthur Anderson as an example of a "leaky" grand jury. Schar disagrees about transparency and argues that defendants often plead guilty because they are offered a better deal than they deserve.
How do Grand Juries Work? (03:57)
The prosecutor is the legal adviser for the 23 members of the grand jury; the standard to get evidence is "relevant." Hoffman counters that grand juries are an investigation tool. Gertner does not believe secrecy should be formally removed from the grand jury process.
QA: Is Absolute Immunity Necessary for Prosecutors? (02:34)
Schar states that prosecutors are bound by ethical rules and that taking away immunity would result in increased lawsuits; civil cases against prosecutors can occur. Butler states that prosecutors are rarely disciplined.
QA: Does the Checks and Balance System Need an Overhaul? (04:33)
Gertner says that information deficit is a challenge for a plea bargaining system review; we need to address mandatory minimums and leverage. Hoffman believes empowering the defense bar with resources is necessary in plea bargains.
QA: Can You Selectively Limit Prosecutorial Power? (08:23)
Donvan makes a radio announcement and answers a rhetorical question. Hoffman does not believe a gradated system would work; a key policy issue is non-violent sentences. Butler believes the same considerations need to be given to everyone; race matters in drug cases. Schar wants to save lives with limited resources; it sometimes has an unfair impact on minority communities.
Concluding Statement For: Gertner (02:41)
The system of prosecutorial discretion and mandatory minimums resulted in Gertner sentencing 80% of offenders to unfair sentences. She cites comments of the prosecutor of the Glenn Ford case; winning was everything.
Concluding Statement Against: Hoffman (02:17)
Hoffman explains why he became a prosecutor. Prosecutors need the power to go after gang leaders and those in positions of power who abuse their authority.
Concluding Statement For: Butler (02:09)
What the prosecutors are doing is not working. The determination of who goes to criminal court should not depend on race and class; we need to restore checks and balances.
Concluding Statement Against: Schar (02:23)
Schar cites the prosecutorial work on the Blagojevich case. The powers of the U.S. attorney's office allowed prosecutors to uncover evidence and achieve a conviction; the system has checks and balances.
Time to Vote (05:08)
Donvan instructs the audience to vote, congratulates panelists, and introduces Daniel Rodriguez and Newt Minow. Rodriquez discusses the Northwestern Pritzker School of Law/Intelligence Squared U.S. partnership. Minow explains why he started televised presidential debates in 1960.
Audience Vote Results (01:01)
Pre-Debate - For: 40% - Against: 18% - Undecided: 42%
Post-Debate - For: 54% - Against: 36% - Undecided: 10%
Credits: U.S. Prosecutors Have Too Much Power: A Debate (00:51)
Credits: U.S. Prosecutors Have Too Much Power: A Debate
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