Chiraag Bains, a former prosecutor and civil rights attorney at the U.S. Justice Department, said that because criminal codes are so complicated, prosecutors have an incredible amount of flexibility in deciding whether and how to bring a case. Prosecutors normally consider the culpability of the individual, the severity of the offense and what kind of penalty is necessary to deter future misconduct.
“One thing that’s very clear is that the sentence here is far disproportionate to the conduct,” said Bains, now director of legal strategies at the think tank Demos, which has brought several voting rights cases across the country. “I think there’s a strong argument ... that there are alternative consequences that are more appropriate for conduct like this. Is this a case that somebody needs to go to jail for? No.” [...]
Bains said it was “disingenuous” to suggest that the prosecutors in Ortega’s case had no control over the sentence. The remark about the voter fraud “floodgates” sent a clear message to jurors about the kind of sentence they should bring.
“That is sending the message to the jury that you need to punish ... severely because of the consequences that will follow if you don’t,” Bains said. “So it’s not surprising that the jury then came back with this disproportionate, heavy sentence of eight years.”