Should "Good People" Be Prosecutors?

By Jeralyn, Section Crime Policy
Posted on Fri Nov 27, 2009 at 12:32:00 PM EST
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George Washington Law Professor Paul Butler has a new book out, Let's Get Free: A Hip-Hop Theory of Justice. It's a book about why the U.S. is wrong to lock up so many people, and how we can safely reduce our incarceration rate.

He devotes a chapter to an intriguing question: "Should Good People Be Prosecutors?" I agree with his answer: [More...]

"Should Good People Be Prosecutors?" The answer is "no." As a young African-American man who had several unpleasant experiences with the police, I became a prosecutor hoping that I could make a difference. I went in as an "undercover brother" who hoped to change things from the inside. Instead, I found, the system changed me.

In researching the book, I interviewed several progressive prosecutors who, like me, became disenchanted with the work. You're not really allowed to use the power that you have in a way that makes a big difference. Your main work, as a line prosecutor, is to put people in prison, and if you seem too uncool with that fact, you start to arouse suspicion.
Becoming a prosecutor to help resolve unfairness in the criminal justice system is like enlisting in the army because you are opposed to the war in Afghanistan. It's like working as an oil refiner because you want to help the environment. Yes, you get to choose the toxic chemicals. Yes, they might let you keep one or two pristine bays untouched. Maybe if you do really good work as a low-level polluter, they might make you the head polluter. But rather than calling yourself an environmentalist, you should think of yourself as a polluter with a conscience.

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Should "Good People" Be Prosecutors? | 31 comments (31 topical)

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That is crazy (5.00 / 5) (#2)
by nyjets on Fri Nov 27, 2009 at 01:01:05 PM EST

I am sorry, that is wrong.
Prosecutors put criminals behind bars. That included murders, rapist, violent offenders, mobsters etc.
Good people do that.
Just like good people represent criminals to make sure that their rights are protected and the state proves there case beyond a reasonable doubt.
Good people become prosecutors just like good people become defenders.

Seems like a pretty (5.00 / 1) (#3)
by dk on Fri Nov 27, 2009 at 01:12:11 PM EST

libertarian point of view to me (i.e. government is inherently the enemy of the good).

No, only bad bad bad people should become (5.00 / 4) (#4)
by tigercourse on Fri Nov 27, 2009 at 01:23:18 PM EST

prosecutors. That will make the system work.

: Preferably those with criminal convictions. (5.00 / 2) (#6)
by oculus on Fri Nov 27, 2009 at 01:26:17 PM EST

Seems clear to me that (5.00 / 3) (#5)
by Inspector Gadget on Fri Nov 27, 2009 at 01:26:00 PM EST

good people should be prosecutors and defenders. How can we trust a system of justice with bad people in it?

I must agree (5.00 / 2) (#11)
by Zorba on Fri Nov 27, 2009 at 02:57:04 PM EST

If only bad people become prosecutors, that's when we get the rather shady prosecutions, withholding and/or falsifying of evidence, and a mindset that says, basically "I just want to win! Never mind about justice being served." A good person should have no qualms about sending the really bad people to prison- this, after all, protects society at large. A good person would want to really make sure (in so far as possible) that the people he/she is prosecuting are, in fact, guilty, and present the case in a fair and equitable way. A good person would want the guilty put away, and the innocent left alone. (Of course, I also have to admit that this "good person" might not have the job of prosecutor for long.)


If the system worked (5.00 / 1) (#13)
by JamesTX on Fri Nov 27, 2009 at 03:28:03 PM EST

the way it was intended to work, the character of the prosecutor would be much less important. That is because the power of the prosecutor would be curtailed to that which the Constitution specified. Under those circumstances, justice does not hinge so directly on the prosecutor's character. Justice is the result of an impartial adversarial system, and a prosecutor with bad character is limited in the damage he/she can do to begin with, because the prosecutor's power to inflict harm is limited to what he/she can legitimately prove.

On the other hand, under the current system where the prosecutor has essentially unlimited power to convict, with or without evidence or cause, we must be very careful to choose "good" prosecutors.

We are talking here about essentially two different systems which work in different ways and operate on different assumptions. One gives the prosecutor no special power and depends on evidence, due process, and impartial judgment based on evidence and argument to achieve justice. The other imbues the prosecutor with unlimited power and relies on the prosecutor's character to achieve justice. The former is what was intended in our system. The latter is what we have been given by the conservative revolution.

If you are going to have dictator, it is very important that the dictator is benevolent. If you are going to have democracy, then the character of the individual leaders is less important, because their power is less absolute and they are subject to scrutiny.


Agreed, but it hasn't (none / 0) (#18)
by gyrfalcon on Fri Nov 27, 2009 at 06:01:44 PM EST

got much to do with the "conservative revolution." It was no different before then, possibly worse because there was so little technology and evidence was more heavily subjective. Yes, the laws have become more draconian, but the character of people drawn to prosecution and happy in the role hasn't changed.


: I am often (5.00 / 1) (#25)
by JamesTX on Fri Nov 27, 2009 at 07:41:21 PM EST

told this, and because of my age, it is probably true that I read more impartiality and fairness into the system prior to the sixties than what was really there.
Surely, the system prior to the sixties was vexed with horrible racism, sexism, homophobia, and other prejudices that were later challenged. And the era of my childhood was marked by the tremendous reforms of the Warren court along with a very brief period of extremely liberal ideas. As such, having been exposed to this in my formative years, the Draconian changes that swept the society in the eighties seemed extreme and bizarre to me, perhaps more so than was warranted.
But for some reason I still believe the actual knowledge of the jury pool prior to the conservative revolution was more complete and more valid. I think people then truly understood what they were supposed to be doing, even if they let their biases interfere.
Two important things happened in the late seventies and eighties that made today's juror's not only more biased and unwilling to hear the case of the defendant, but also actually impeded their understanding of the theory and purpose of the system -- that they were supposed to be listening to the defendant's case and that they were free to consider its validity, and ultimately perhaps even concur with the defense.
Because the authoritarian message of the conservative revolution was coupled with decreased quality of civics education (some would argue intentionally), large blocks of the public now actually have incorrect beliefs about the facts of the criminal justice system. They either have forgotten, or more likely, were simply never taught, that the criminal trial is a fact-finding process and that the defendant is presumed innocent.
It took a while for me to understand that most people today do not take this right-wing attitude as a matter of opinion -- as a matter of their beliefs which they are willing to allow to influence them in the jury box. They aren't consciously nullifying their charge, choosing to ignore the defendant's rights because they want to. They actually believe the burden of proof is on the defendant, and they believe it is technically wrong and illegal to disagree with an authority such as the police or a state prosecutor. In some cases, they may actually not realize they have the option to find the defendant not guilty. I think this is true even if they are instructed otherwise. I am an educator. Something odd has happened in this country over the last few decades, and it isn't immediately obvious to everyone. It appears in the course of my work, because my work involves teaching, thinking, and evaluation of arguments and data. It also involves communicating complex ideas to younger people, and then assessing their understanding of what has been communicated. Believe me, we are in trouble!
In my experience people no longer process instructions, especially complex instructions or instructions that employ formal language. They no longer use formal language, and they consider it a dead form of communication. They think in cliches and incomplete ideas, which impedes their ability to understand things as complex as a criminal trial. They find formal communication incomprehensible, and endlessly seek for formal ideas to be restated in "real world" terms. The only problem is that the "real world" they live in is a terribly limited place, which only allows for certain behaviors (like purchasing) and de-emphasizes reflective thought to the point that ideas involving more than minimal complexity are discarded as useless abstractions. Stories can't be very long, and pictures can't be very big. Authority is always the universal constant -- like the speed of light -- which is invoked handily to cut through troubling complexity and return to familiar and comfortable ground.
I think many people today really do not understand the basic principles which criminal trials are based on, and they no longer have the capability to interpret instructions which conflict with their underlying beliefs. They do not have the command of language necessary to articulate what they believe to begin with. Since they can't articulate what they believe, they can't recognize immediately in an effective way when formal instructions conflict with their prior knowledge. The result is the instructions are ignored, or they are "heard" in a warped way to agree with the underlying un-articulated prior (incorrect) knowledge.
In one criminal case which I am intimately aware of, the guilty verdict was achieved by a right-wing foreman who intimidated younger, less knowledgeable jurors with threats that they would be charged with contempt if they did not concede to a guilty verdict. It worked. These jurors actually believed they had to find the defendant guilty or they would face criminal charges, and this bizarre threat did not strike them as fundamentally questionable -- as it should any competent juror. That surprised me, and it was my first hint that many juror's today don't have the basic facts right about what they are doing and what they are supposed to be doing, nor what their options are.
The conservative revolution had a much bigger impact on our society than most older people realize. Among young people, it was very intense and very targeted. It changed the way kids process information and the way they view argument. It was a complex and multi-pronged effort that involved well coordinated attacks and sabotage at many levels and on many fronts. In this case, the sabotage of civics education coupled with extremist attitudes about criminal justice produced a large population of people who can't deliver justice in a criminal trial not only because they don't want to, but because they have never been taught what an American trial is and how it is supposed to work. Their private religious culture has misled them with a very narrow authoritarianism, and their educational system has failed to correct the falsehoods which the private culture held to be true because they wished it so -- not because it was.
Things are bad out there -- worse than than many of us expected.

I'm sorry, but I think that's wrong. (5.00 / 1) (#14)
by Donald from Hawaii on Fri Nov 27, 2009 at 04:29:17 PM EST

I have very good friends who work as prosecutors for the City and County of Honolulu. They're politically liberal and progressive, and like many of their defense counsel counterparts, they're good people with an inherently tough job to do. Suffice to say that it's quite easy to lose sight of an overarching truth, especially when you're planted firmly at ground level in the field of fire.

First and formost, my concern as a citizen is to see that justice is done, and to resist the temptation to tip the scales on behalf of either the prosecution or the defense in light of whatever contemporary passions may exist.

Therefore, I'd like to think that a good prosecutor would be a fair-minded advocate for the people who:

(a) Pursues the truth first and formost, regardless of where it might lead;

(b) Recognizes that the burden of proof always rests with the state, and not with the defendant;

(c) Presents the people's case competently, whenever it is necessary; and

(d) Can fulfill one's duty dispassionately, without requiring a defendant's concurrent conviction in each and every instance.

In that regard, we as citizens must insist upon the appointment, election and retention of prosecutors who can define justice not in mere two-dimensional terms of wins and losses, but rather as a quality body of work which reflects such intangible measures as mercy, compassion and eminently sound judgment.

So I must respectfully disagree with Mr. Butler's assessment. We certainly do need good people who are willing to serve, not only as prosecutors but also as defense attorneys. Should their work ever be left solely to the bipedal cartoons amongst us - i.e., those who'd otherwise seek only to win at all costs, regardless of circumstance and evidence - the real losers in the long run will be us as a democratic society.

Aloha.

I can't (5.00 / 1) (#15)
by lentinel on Fri Nov 27, 2009 at 05:17:53 PM EST

figure out what Paul Butler's talking about in the excerpt above.

How did he expect to bring about change by becoming a prosecutor? And what was he interested in changing?

Did he want to be an ineffective prosecutor to allow defendants to go free? I just don't know what he is talking about.

I am often on the side of defendant - especially if the I am aware that the government is trying to railroad some poor soul for political purposes. And always if the "crime" is smoking pot or some similar offense.

But for people who intentionally commit violent crimes - or steal from others - a prosecutor is the only means society has to make the defendant take a pause from their harmful conduct.
So, why would a prosecutor be inherently bad?

Maybe Madoff shouldn't have gotten a sentence of 150 years, but he certainly should have been prosecuted imo.

Should good people be prosecutors? (5.00 / 1) (#16)
by christinep on Fri Nov 27, 2009 at 05:18:43 PM EST

Yes. (Many good comments above. Yet, the question seems to be a CNN-type button-pushing emotional question.)

If "good = weak", then no (5.00 / 1) (#17)
by abdiel on Fri Nov 27, 2009 at 05:25:59 PM EST

If good = someone who does their job with integrity, then yes. But we should realize that the legal system works through the adversarial process - neither prosecutors nor defense attorneys are arbiters or finders of "truth". They each present their case and the jury decides what the "truth" is. It is important for lawyers to understand that when they go in.

A lawyer must always represent their client to the best of their ability. If they refuse or can't do it, then they should recuse themselves or find another line of work.

Sounds like a bit of sour grapes (5.00 / 0) (#21)
by BrassTacks on Fri Nov 27, 2009 at 07:11:58 PM EST

He couldn't send fewer brothers to jail, he's disappointed and angry. His conclusion is that good people like him shouldn't think that they can keep more people out of jail by being prosecutors. Since the system will continue to prosecute and jail bad people, good people shouldn't even bother to try to change that. Just let bad people send people to jail. That's my best guess.

anne is pretty close, (5.00 / 1) (#28)
by cpinva on Sat Nov 28, 2009 at 05:02:13 AM EST

it all depends on your definition of good & bad.

prosecutors are the people's lawyers. as such, i expect them to zealously advocate on behalf of their client (us), in good faith. the operative term being good faith. the lack of any substantive penalty, for failures to act in good faith, provide "bad" people the motivation to violate that concept.

both prosecutors and defense counsel are bound by a code of professional ethics. as long as their actions remain within the confines of that code, in both substance and form, their "goodness" or "badness" should make no difference.

in prof. butler's case (from the excerpt), he seems to equate "good" with putting fewer young african americans in prison. he fails to recognize the obvious: that isn't a prosecutor's job. kind of sad for a law professor.

At heart his argument is simply (5.00 / 0) (#29)
by esmense on Sat Nov 28, 2009 at 09:02:56 AM EST

that reformers are more effective working on the outside than on the inside. That, in my opinion, is a valid and valuable argument. But characterizing all those on the inside (in the military, the oil company, the prosecutor's office) as "bad" people and those seeking reform as "good" isn't a helpful way to present the argument.

Those insiders, after all, have been asked to perform a function that they and society in general consider extremely important. It is only natural that their notion of "good" will be to perform that function as zealously as possible.

It is the reformer's task to point out -- to the general public and any higher authorities, as well as to those performing inside the system -- when that zeal has become harmful and corrupted and to demand accountability and correction.

Ha. Talk to the state legislatures (none / 0) (#1)
by oculus on Fri Nov 27, 2009 at 12:46:04 PM EST

Congress (who define criminal conduct and set forth penalties), and the people who elect county prosecutors or the President who nominates U.S. Attorney for each district.

I don't think (none / 0) (#7)
by JamesTX on Fri Nov 27, 2009 at 02:09:07 PM EST

we should want "bad" people as prosecutors, but that in itself is not what has gone wrong in the criminal justice system. The vast majority of the American public has no concept or suspicion of prosecutorial error or even misconduct. These are a class of people who, according to the eighties-style Reaganist conservative backlash culture, can do no wrong. Furthermore, they are by definition right. Prior to the conservative revolution, criminal proceedings were correctly viewed as adversarial processes where two potentially fallible sides argued toward the truth. Both were seen as having the potential of being in error, and the process was seen as a sorting out of the facts to see who was most likely to be correct.

After the conservative revolution, prosecutors are viewed as infallible virtuous people fighting the "good fight" against unscrupulous defense attorneys who are defending unquestionably guilty suspects. I remember one of the few instances in the last few decades where I made it to the voir dire process after getting a summons. A defense attorney was using what appeared to be some general screening questions to locate that small percentage of available jurors who still understand what the actual purpose of a trial is (when asked nowadays, most Americans think the purpose of a trial is to "punish a criminal"). This defense attorney asked in some fashion who the person sitting next to her was. The typical response from prospective jurors was "the criminal", the "guilty party", "the person who committed the crime", etc. .

Prosecutors can be good people and still be wrong. That is where our thinking is breaking down. If a person is an official, and they are "good", then we are not allowed to contemplate the possibility they are wrong. That is seriously flawed thinking, and the result is a system that no longer works as intended.

The problem with criminal justice is not the prosecutors, the judges, or the system. It's the public and the severely skewed and unrealistic attitudes and opinions which they have been taught under the conservative revolutionary agenda to restore the assumptions of authoritarianism.

An opportunity to argue your case to a jury used to be an opportunity full of hope. It is now, except under very peculiar circumstances, a certain conviction. That is really attributable to two reasons -- the 1) theoretical and the 2) practical conservative forces which effectively nullify juries.

The theoretical force is the skewed set of attitudes and beliefs I have described above. The practical force is that juries are afraid to disagree with or challenge the proclamations of authority, and somehow fear they will be punished for it. That is the most important rule of living that the conservative revolution has instilled in the public. Certain punishment awaits those who disagree with authorities. Returning a verdict of "not guilty" is tantamount to publicly challenging the authority of police and prosecutors. Find me one American in 50 who would dare do such a thing. It is much easier to punish innocent people than to contemplate publicly rebuking an icon of authority such as a prosecutor. When jurors nowadays are confronted with absurd wrongful convictions which they produced, they inevitably rationalize that they didn't perpetrate the injustice. They insist that the court and the prosecution did it, insisting that they had no choice. This betrays the fact that they see themselves as powerless in the process.

Although the recent case against (5.00 / 1) (#8)
by oculus on Fri Nov 27, 2009 at 02:17:45 PM EST

Ted Stevens belies your theory. And the "documentary" re Polanski judge and DDA.


: These are special (5.00 / 1) (#10)
by JamesTX on Fri Nov 27, 2009 at 02:44:45 PM EST

cases. I thought Polanski's case was a plea bargain decided by a judge. It was also prior to the full force of the conservative revolution's effects on trials. Remember, I said this was all a result of Reagan era reshaping of public discourse.
I am not familiar with the Stevens case, but I would say it is unique and not typical for the same reason as any other celebrity trial. In these cases, the system comes closer to working than in other cases because there is so much scrutiny. Both the theoretical and practical jury nullification forces are much less important in such cases, also, because the jurors are actually confronted with conflicting authorities -- not an authority against an anonymous and powerless person. The rich and powerful are also viewed as legitimate authorities under the conservative philosophy. They are somewhat equal to prosecutors in authority (or social capital), and they are therefore afforded the privilege, in the public's opinion, to question authority and to have a valid story of their own.
The typical case of anonymous and run-of-the-mill defendants is where my theory applies. This context covers by far the overwhelming majority of cases. Jurors inevitably know and respect rich and powerful people. But the typical defendant has no standing and is guilty by default -- by virtue of being accused by an authority. Celebrity cases are not situations from which we can validly generalize the characteristics of the system. They are very special affairs.

Many problems exist these days (5.00 / 1) (#9)
by Inspector Gadget on Fri Nov 27, 2009 at 02:33:35 PM EST

The idea of "win/loss" competition in the court of justice is horrible. If true justice is served, the side that "lost" should be as proud of the job they did as the side that "won," though I don't think that's the case.

Having served several times on a jury, I know it takes great resolve to not give in to those who are repeating, "they wouldn't be on trial if the authorities don't have enough on them," and "what the h#ll is wrong with you that you can't see this"? Doesn't matter to them that prosecutors presented a pager as evidence, and receipts for contracts in someone else's name and serial numbers that don't include the one in evidence prove absolutely nothing. It's surreal.

The system is overloaded to boot.


What beautiful (5.00 / 1) (#12)
by JamesTX on Fri Nov 27, 2009 at 03:08:08 PM EST

examples of what I was writing about:

1) "they wouldn't be on trial if the authorities don't have enough on them,"

This is the presumption of guilt and automatic deference to authority. It betrays that the person really sees no purpose in the trial other than a rubber stamp of the authority's decision. This person does not understand their duty as a juror and should not have been seated. Unfortunately, this is the norm. These are the juries that rendered all the verdicts that are now being reversed in death row cases. The sad shame is that most of the non-capital convictions were given by the same people. They will never be reviewed. This is a dark period of history. The results will live on into future generations where important providers and family members have been ripped from the lives of children. It is a serious ethical faltering which is approaching the status of evil.

2) "what the h#ll is wrong with you that you can't see this"?

Yes, what's wrong with you! We all know the rules. The police told you the way it is. What's wrong with you? There must be something seriously wrong with anyone who doesn't go along with the proclamations of authorities. We are taught early on to spot such troublemakers and weed them out! How did you get far enough in society to sit on a jury!


I was once challenged off a jury (none / 0) (#19)
by Inspector Gadget on Fri Nov 27, 2009 at 06:58:48 PM EST

as the first act of the prosecutor when questioning was done. I was juror #79 and had absolutely no chance of being seated. But, the judge had directed a question right at me, "you mean to tell me that if I specifically tell you how to interpret the law and the evidence you would not be able to follow my instructions"? My response was a simple, "that is exactly what I am saying, your honor."

The entire case had my jaw resting on my chest.


Good for you, (none / 0) (#20)
by Zorba on Fri Nov 27, 2009 at 07:09:38 PM EST

Inspector Gadget. That judge apparently did not believe in jury nullification (which, unfortunately, most judges do not). Fortunately, I live in one of the very, very few states where jury nullification is embedded in our state constitution (Maryland: "[i]n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.").


That cuts both ways (none / 0) (#22)
by andgarden on Fri Nov 27, 2009 at 07:21:04 PM EST

I am not entirely sure I love a system that allows jurors to decide that I "deserved" a crime committed against me.


Wouldn't proper screening make sure (none / 0) (#23)
by Inspector Gadget on Fri Nov 27, 2009 at 07:39:37 PM EST

that couldn't happen, andgarden? Depending on the crime against a person, wouldn't prejudices against the victim be a big part of the questioning of the jurors?


Depends on where you are (none / 0) (#26)
by andgarden on Fri Nov 27, 2009 at 07:50:28 PM EST

Could you find a jury in the 1950s south that would unanimously convict whites for lynching, even if blacks were included in the jury pool?


: I see what you mean... (5.00 / 1) (#27)
by Inspector Gadget on Fri Nov 27, 2009 at 08:04:06 PM EST

If you've never seen the movie "A Cry in the Dark" with Meryl Streep, I highly recommend it.
I was living in Australia during the trial and the movie is so unbelievably accurate that it's a really great example of pre-judging. I realize their system is a bit different than ours, but the jurors and the media showed the most hateful prejudice I've ever seen. Lindy Chamberlain was actually innocent and it was painfully obvious to anyone who was paying attention to the evidence.

This seems like a set-up for a false choice (none / 0) (#24)
by Anne on Fri Nov 27, 2009 at 07:39:53 PM EST

to me; "good" v. "bad." If "good" means lawyers who respect and defend the constitution, and that means some accused of crimes go free, then that's what I want. If "bad" means lawyers who will trash the constitution just to get "wins," then, no, I don't want that.

It also sounds like the author would be better-suited to defense work.

Starting at the bottom, no, but (none / 0) (#30)
by Ben Masel on Sat Nov 28, 2009 at 10:13:53 AM EST

Running against rotten District Attorneys, please more.

from the defender of McVeigh??? (none / 0) (#31)
by diogenes on Sat Nov 28, 2009 at 11:31:57 AM EST

And defense attorneys try every trick possible to get people off, even Timothy McVeigh or OJ.
You could say that good people shouldn't prosecute a person who they know is innocent or defend a person they know is guilty, but that is a different world view from TalkLeft.