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Holding Prosecutors and Judges Accountable for Unequal Justice

By Kerry L. Erisman, Faculty Member, Legal Studies, American Military University

The phrase “Equal Justice Under Law” is engraved on the front of the United States Supreme Court building. But in today’s society, there should be an asterisk next to it with the caveat: “unless you come from a good family, are wealthy, or are an aspiring athlete.” There are several recent cases that exemplify this.

In 2017, a 16-year-old male in New Jersey raped a teenage girl, videotaped it, and sent it to his friends with the caption “when your first time having sex was rape.” A New Jersey Superior Court judge denied a request for the suspect to be tried as an adult because the suspect came from a “good family,” attended an excellent school, and would get into a good college.

In 2008, multi-millionaire Jeffrey Epstein pleaded guilty to a sex crime involving a teenage girl but served only a little over a year in jail. The plea deal included an agreement that the federal government would not pursue a case against him, despite an aggressive FBI investigation that was still ongoing. Turns out, Epstein was sexually abusing dozens of girls as young as fourteen, but his expensive lawyers and hush money payments to potential witnesses ($350,000 according to prosecutors) made the investigation disappear.

[Related: Epstein Suicide Suggests a Breach in Prison Protocol]

In a third example, Stanford University swimmer Brock Turner was convicted in 2015 of three felonies, including assault with intent to commit rape and penetration of an intoxicated and unconscious person. Turner faced up to 14 years in prison, but Judge Aaron Persky sentenced him to only six months confinement, of which he served three. During sentencing, Persky stated that a harsher sentence would have a “severe impact” on Turner, a star swimmer with aspirations of competing in the Olympics.

Disparity in the Criminal Justice System

The three examples cited above illustrate the disparity in the United States criminal justice system. The fact that a person comes from a good family, is wealthy, or is a promising athlete does not diminish the seriousness of their offense and it certainly should not lessen the sentence. If anything, these factors make the crimes worse. These people had everything going for them and their actions do not deserve to be excused or minimized.

This disparity based on socio-economic background and privilege is unacceptable, and it is time for citizens to demand that those charged with making decisions within the criminal justice system are held accountable. For example, prosecutors must be held accountable for abuses of prosecutorial discretion and judges must be removed from office when they fail to protect victims of crime and the public at large.

Limits on Use of Discretion

Prosecutors have considerable discretion in deciding which cases to take to trial and which cases to dispose of via plea bargains or alternative dispositions. This discretion is often unchecked and unfettered. Judges have even more discretion during the sentencing of criminal defendants. While judges often have sentencing guidelines to consider, these guidelines are not mandatory but instead offer a suggested range. Judges are free to disregard or ignore sentencing guidelines.

While prosecutorial discretion is extremely important to the criminal justice system, there must be clear limits. Most state and local prosecutors are typically elected to four-year terms. Prosecutors who abuse their discretion must be held accountable and not reelected. Opponents of this measure will argue that such scrutiny will lead to prosecutors being afraid to exercise plea bargains and the criminal justice system will grind to a halt. They argue that plea bargains keep the criminal justice system afloat because the court system simply cannot handle a fully contested trial for every case. However, while plea bargains have a clear purpose, there must also be clear limits on prosecutors’ abuse of discretion.

Judges must also be held accountable for their actions and removed from the bench when they fail to protect victims of crime and the public at large. In June of 2018, for example, California voters recalled State Superior Court Judge Aaron Persky for his sentence in the Brock Turner case. Based on the recall, Persky was immediately removed from the bench. In addition, the New Jersey Superior Court judge who noted the suspect came from a “good family” stepped down from the bench in response to sharp criticism and protests. Opponents argue that such actions have a chilling effect on judicial independence and will lead to mass incarceration because judges will fear repercussions. Again, there must be clear limits when judges abuse their discretion.

Removing prosecutors and judges from office is a severe sanction and should not be taken lightly, but the time has come to take action and eliminate unequal justice in America and instead uphold ”Equal Justice Under Law.” I like to remember the words of Robert F. Kennedy: “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.”

About the Author: Kerry L. Erisman is an attorney and associate professor of legal studies with American Military University. He previously served as a prosecutor, chief prosecutor, and defense attorney. To contact the author, email For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.

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