Prosecutors have a basic ethical duty to refrain from seeking penalties that are excessive in relation to the moral culpability of a defendant. They wield state power, and with that power comes an obligation to exercise fairness.
This duty is difficult to police. While the American Bar Association publishes guidelines pertinent to prosecutorial conduct, there are few bright lines drawn, leaving the system to rely heavily on the internal moral compasses of individual lawyers exercising a broad grant of discretion.
But although this is mostly a matter of internal lawyerly calculus, there are occasionally clear examples – or at least revealing glimpses – to indicate where me might have a problem.
Take, for example, the recent prosecution of TSgt. Aaron Allmon at Minot Air Force Base. After coworkers accused Allmon of improperly touching, threatening, and assaulting them in addition to making inappropriate sexual remarks, Air Force lawyers threw the book at him. The initial stack of charges considered could have resulted in 130 years of confinement. After a military judge chided prosecutors for overcharging, the portfolio was pared down for trial. Still, Allmon faced up to 15 years in prison if convicted of the charges prosecutors pursued against him.
At trial, he was convicted of making inappropriate comments to two of his officemates and lying to investigators about the location of his cellphone. He was acquitted of everything else and ultimately sentenced to 30 days, 7 of which he’d already served.
After the trial concluded, the Air Force promptly dispatched a “A senior Air Force official, who requested to remain anonymous in order to discuss the case.” His remarks to the Air Force Times were designed to beat back assertions by Allmon’s defense team that the service had been overzealous in prosecuting the case. But the unnamed official unwittingly provides evidence of just the opposite conclusion.
Here’s an important excerpt from the Times report:
“He never would have faced 130 years in prison because those charges were not refereed to trial,” the official said. “What he did face was the maximum punishment of 15 years. Even in trial the government counsel argued for 60 days confinement. The prosecutor was not overzealous.”
What we have here is an admission that the prosecution believed – and even said so openly in court – that Allmon only deserved 60 days. Yet the prosecution pursued 15 years worth of charges after initially bidding for 130 years.
This is a bare admission of abusive charging. The Government held a man in jeopardy for 180 months of prison time on charges it believed amounted to one ninetieth that level of severity. In doing so, the lawyers involved risked that the jury might actually find in their favor on all charges and that the judge might deliver a sentence at the full extent of the law. They bet a man’s life that these things wouldn’t happen. This is unethical and unacceptable, notwithstanding the insistences of the anonymous official.
And on that note, why not speak for the record? There is no bar to discussion of the case, and the best evidence of this is the release of a beautifully scripted Air Force press release touting the outcome. Apparently, speaking is only authorized through faceless, unfalsifiable press releases. Is it any wonder our enemies are emboldened when we lack to the basic courage to address one another openly and honestly about matters this important?
Maybe “Anonymous” is just too much of an individual coward to attach a name to this lamentable collection of ideas for fear of being challenged. But more likely, s/he was acting on official orders to try to reinforce favored narratives without wagering too much credibility. It may have seemed like a shrewd move to whichever bureaucrat authorized it, especially given the weakness of the argument attempted. But this brand of institutional cowardice actually undermines system legitimacy. When you’re not even confident enough in your legal system to let its apologists argue under their own names, why should anyone else believe you’re getting it right?
If the Air Force is proud of its tactics in this case, let someone who holds a rank and position – someone who stands to lose something by being wrong – take ownership of the message. That’s leadership. What we have here is scurrying in the shadows.
What happened in this case looks to the casual observer like classic overcharging. This is, unfortunately, a pervasive practice in our system, because there’s no easy way to police it without creating other unacceptable infringements on prosecutorial discretion (another discussion for another time). Overcharging can take a couple of different forms. Horizontal overcharging seeks to fragment conduct into a broad collection of technical infractions, while vertical overcharging layers more severe accusations on top of those actually corresponding to conduct. This latter form, arguably evident in the Allmon case, is more abusive. It creates more jeopardy for a defendant than his culpability entitles.
Why do prosecutors overcharge? The conventional wisdom holds that it’s done to coerce defendants into plea negotiations, and this is often true. But there’s another potential explanation for the Air Force’s recourse to this tactic: the intrusion of politics.
The service is trying to look tough on sexual assault, which is very difficult to prove in court and very difficult to prevent beyond a certain point in its organizations … at least without resorting to divisive human sorting tactics that have toxic effects on cohesiveness and morale and will not, in the end, prevent every assault from happening. Confidence in the Air Force’s ability to effectively deal with this problem is close to nil, and a few high-profile legal debacles in recent years have dialed up the political pressure.
The problem with pressure is that without strong leadership controlling its impact, it can warp things. The Air Force is responding to political pressure by trying to look especially tough on anything that has a vague perceptual link with sexual assault. This means any suspected sexual impropriety of any kind — from adultery to harassment to dirty jokes in the workplace – is receiving much the same law enforcement response as a suspected forcible assault.
In other words, the service is looking tough where it can in the hopes that it’ll look tough enough generally to retain full control of its justice system. Never mind that this means potentially overreacting to lesser misconduct, over-punishing lesser offenses, and criminalizing things that should be handled administratively or through ordinary supervisory actions.
There are two reasons to object to this. First, it disregards individual justice in favor of utilitarian goal seeking, which is offensive to the rule of law and abuses a solemn grant of authority given on the assumption of ethical conduct. Second, it allows the Air Force to prevail on perception without addressing substance.
While the Air Force chases its tail conducting show trials over low-level misconduct, it continues to preside over a precipitous decline in organizational health. Left unchecked, this decline will produce severe issues of morale and discipline. Crimes, including sexual assaults, will become more pervasive.
The service isn’t addressing sexual assault in earnest, with more prosecutors, more investigators, and a more precise and widely communicated appreciation of the law. As long as it can continue eyewashing its way through by looking tough, training and retraining everyone using the latest social science fads, and bombarding everyone with constant propaganda, it won’t have to actually get at the problem.
Somehow, the “leadership” of this anonymous spokesperson doesn’t seem like the right response to concerns about this case. But it fits perfectly within the rubric of modern Air Force generalship, such as it is.