Who knows when, or even if, US Attorney Michael Sullivan will be confirmed by the Senate to run ATF? (Who knows, for that matter, exactly what the head of ATF does, or what real impact its director can have on public safety or law enforcement? Or why someone would give up a position like US Attorney, where you can make real decisions in real cases, for that kind of bureaucrat’s job? But I digress.)
Whatever the timetable may prove to be, it’s clear that, now more than ever, the media knives are out for Sullivan, as evidenced by a hatchet job by Joe Keohane in Boston Magazine and a more balanced but generally unflattering piece earlier this week by Jonathan Saltzmann in the Globe
Does he deserve it? In many ways, of course, Sullivan’s made himself an easy target by failing to bow and scrape to the powers-that-be over at One Courthouse Way. He’s declined to genuflect to the judges, and they are not happy about that. Once upon a time, his willingness to stand up to the judges, particularly in contrast to his predecessor, was seen as a breath of fresh air by many Assistant US Attorneys. But that day is gone, as the judges have made prosecutors lives nearly–but only nearly–as difficult as they’ve always made things for defense lawyers.
More to the point, even before he was nominated to ATF, Sullivan was seen as an absentee landlord by the rank-and-file assistants–setting hard and fast rules without making the investment of time necessary to understand the difficulties associated with the cases. Many say he seems more concerned about cultivating his image than about the day in, day out work that, taken together, separates the good US Attorney’s offices from the mediocre ones. To office insiders, Sullivan never seemed like he was interesting in minding the store.
That Sullvan’s hired a couple of his buddies got prominent play in the Boston Magazine slash-and-burn story. (My favorite line: “Despite the throngs of street criminals shipped to the federal pen since Sullivan took office, violence continues unimpeded in urban Massachusetts.” Well, can’t we at least admit that the people who’ve gotten the long sentences have been pretty effectively impeded?) But, in truth, having a sponsor who knows the US Attorney has always been a big help in getting hired as an Assistant US Attorney. It’s a big office, and two crony hires (if that’s what they were) surely aren’t going to define Sullivan’s legacy.
A larger issue, as the Globe story pointed out, is the falling number of prosecutions. But, in the end, do we judge a US Attorney by the number of cases his office has brought? As the excellent White Collar Crime Prof Blog and the American Lawyer have recently noted, corporate crime prosecutions have fallen off dramatically nationwide.
Shouldn’t we focus on the quality of the cases, and how his office has fared when the cases come to Court? Here, the record is mixed, but mostly positive. The office devoted lots of resources to some cases that came out well–to Richard Reid’s prosecution, for example, to the prosecution of Paul DeCologero for the murder of Aislin Silva, and to some investigations that remain works in progress, like the Big Dig case. The Health Care Fraud Unit has racked up big fines and civil penalties, but has a poor track record at convicting individuals.
Ironically, a low point in Sullivan’s tenure may be an area he likes to talk about as a major accomplisment: gun and drug prosecutions. His rigid sentencing policies have resulted in more trials. More trials mean that assistants have less time for grand jury work. Less grand jury work means fewer indictments. Fewer indictments mean that fewer dangerous criminals will be taken off the street now, when they are young, and liable to do the most damage. Phone book sentences mainly mean there’ll be fewer geriatric criminals on the street in 35 years, but I’m really not worried about whether these defendants get out of prison when they are in their 40s rather than their 50s or 60s–the real worries are the dangerous men in their 20s who aren’t being indicted now.
One can’t, in the end, discount the wide cultural gap between Sullivan, the judges and most of the prosecutors in his office. Elitism–based on academic credentials, law firm pedigree and the like–will never be in short supply on the federal bench or in the US Attorney’s office. Sullivan never fit that bill. His rough and ready persona was a perfect fit for a state prosecutor’s office. But many federal judges and just as many federal prosecutors tend to look down on state court prosecutors as less evolved forms of lawyers. To his credit, Sullivan never felt the need to kowtow to the prevailing elitist ethic.
There may be a change of leadership soon (with the smart money these days betting on Roberto Braceras)but it’s hard to imagine that there won’t be a much bigger change after the election. The Sullivan experiment–tough talk, all the time–will almost surely be replaced by a more nuanced approach, more to the liking of the judges. And more to the liking of most line prosecutors–whose work, of course, is what really counts in the end.