Why Prosecution? Be Realistic.

Law student Laura McWilliams, blogging at Really? Law? (go ahead and add it to your feedreader now—done?—great), writes here and here about the thought process that has her leaning toward an eventual job prosecuting people. From the first post:

In an idealist vision, (let’s just go with it; there’s nothing wrong with a little idealism) the prosecution and the defense are both working for the same thing. Both sides want the proper person to be properly held accountable. Neither side wants a wrong conviction. No one wants an innocent to be hurt; nor does anyone want a guilty individual to commit a future crime. We all live in this society, and in this society we use criminal justice to protect our collective morals and safety. Some of us love the law. Some of us don’t. None of us believes that it’s perfect, but it’s the system we have and we need to understand it and do what we can to make it work as well as possible.

No, there's nothing wrong with a little idealism, but such idealism casts little light on the way things are. Presumably nobody wants anyone punished undeservedly, but in the real world nobody knows what anyone deserves. So prosecutors fight for their idea of desert and defense lawyers fight to prevent it. If the system is properly calibrated, the adversary system won't result in violations, like the conviction or execution of factually innocent people, or the disproportionate sentencing of petty offenders, of society's agreed-upon principles.

But the system is out of balance. Convicting the accused is too easy (else innocent people would not go to prison) and sentences (especially under guidelines regimes) are too harsh. If there is the possibility of the government killing someone for a crime he didn't commit, the train has gone off the rails. The best thing for society might be for talented people to make every effort to stop it.

Even if the system is not so broken that it needs to be stopped, the choices that future lawyers like Laura make can affect the balance of they system. If she becomes a prosecutor, she makes us safer but less free; if she becomes a criminal-defense lawyer, she makes us freer but less safe. The two choices—more safety and more freedom—are mutually exclusive. So the prospective criminal lawyer gets to decide: is it better that we should be more free, or safer?

Those who laud law enforcement often point to the murderers, rapists, and robbers who would overrun us if we didn't have police, prosecutors, and prisons. But the great majority of the people being processed by the criminal justice system are not murderers, rapists, and robbers. Rather, they are nonviolent offenders who have committed victimless crimes.

One reason that the system is so badly out of whack is that the criminal justice system is viewed, even by law students, as a tool to protect not only our safety, but also "our collective morals." The protection of our collective morals—the mythical province of aspiring theocrats—leads to the condemnation and prosecution of conduct that threatens our safety only tenuously, if at all.

But can't a prosecutor help bring the system back into balance? Well, prosecutors don't make the laws or set the punishments. They just enforce them. And those making the laws and setting the punishments aren't listening to those prosecutors who are telling them to back off; they're listening to the pollsters who are telling them to play to the fear. Prosecutors—especially new prosecutors—have to play by the rules that their bosses set, and those rules don't often include disregarding the laws that shouldn't be.

I've said before, if you see the high ground, take it. That is, if you have a clear vision of your proper role in the criminal justice system, don't go mucking around on the other side. But sometimes the terrain is misleading, and what looked like high ground turns out to be swamp.

27 responses to “Why Prosecution? Be Realistic.”

  1. Thank you for the post. You’re teaching me things I’d never learn in a law school classroom. Are you as interested as I am to think about where I’ll be in two years, when I’m practicing law?

  2. I’m going to have to disagree with Laura’s initial premise regarding what a criminal defense lawyer should want.

    I, for one, could quite frankly care less if the proper person is properly held accountable. Enough of the time, no crime has actually been committed for anyone to be held accountable for.

    The way I see it (and I’m young and stupid too, so feel free to yell at me publicly, Mark), the job of the criminal defense lawyer is to ensure that the system works the way it’s intended to. It’s about making sure that police officers can’t arrest somebody on a whim because they don’t like the way they look. It’s about making sure the accused is afforded every procedural protection available under the US and Texas Constitutions, the Texas Code of Criminal Procedure, the Rules of Evidence, and the rules of professional responsibility. It’s about making sure that the prosecution is held to it’s burden of proof beyond a reasonable doubt in every single case.

    It’s about making sure that a 19 year old kid who took some DVDs from K-mart and brushed past the security guard on the way out doesn’t end up with a felony robbery rap and 10 years probation.

    People ask me, if you defended somebody you knew was guilty (usually of horrible crime like child rape or murder) and they went free on some technicality, wouldn’t you feel guilty? My answer is always, of course not. If I were going to be upset with anyone at all it would be the police or prosecutors who didn’t do their job correctly. It’s their job, not mine, to make sure that the guilty are convicted. My job is to challenge the state at every reasonable opportunity and to hold them to the standard required by law. My job is about protecting the Constitution and the laws of the state of Texas. More often than not, my job is about making every effort to keep the system honest.

    • Charlie, you are of course correct about the defense role in the real (non-idealized) system that we have.

      If lawyers were perfect and could tell what people deserved, it might make sense for both sides to work toward that justice; if pigs had wings, I’d need a stouter umbrella.

  3. I have to disagree with both Laura and Charlie. The job of a criminal defense attorney is most certainly not to seek justice. It may be that, in a some cases, justice means the client going free. But “justice” is a subjective term, and if we try to apply some sort of objective standard, involving words like “truth” and “factually” then too often “justice” is not going to be in the client’s best interest.

    But nor is the responsibility of the criminal defense attorney to “ensure that the system works,” much less “protecting the Constitution and the laws of the state of Texas.” Are you kidding? –And, Mark, you AGREED with this comment??

    The job of the criminal defense attorney is to protect the rights of the client, defend him from the government, and to preserve his personal liberty. Period. In some cases that means seeking justice. In others it might possibly mean ensuring that the system works. If it requires protecting the Constitution and the laws of the State of Texas, then so be it. But too often those laws and that Constitution do not operate in the client’s favor.

    Why can’t we just be blunt? In most cases, the task of the criminal defense lawyer is to assist the client in evading responsibility for an offense. Or, failing that, to ameliorate that responsibility and minimize the punishment meted out. There’s nothing wrong with this. It is how our system was constructed, and how the adversarial process works. But unless your caseload consists solely of innocent clients, then most of the time your job, to put it crudely, is to “get the guy off.” Whether it is via advocacy, a technicality, or however, that is our job and the measure of our success. It is a simple truth that acknowledges as its premise another truth: That the facts are usually not on our client’s side.

    I’ll give Laura credit at least for recognizing that her position is idealistic. From the follow up comments, the same cannot be said about Charlie and Mark.

    • Fair enough, Mike. I was trying my hand at flag waving patriotism for the 4th of July… I’m apparently not that good at it.

      Just the same… for the sake of argument and due process and whatnot, let’s assume that police officers, prosecutors, and judges occasionally violate constitutional or procedural safeguards designed to protect our heroes from an overbearing and unchecked government. Wouldn’t it be great if there were a group of people advocating on behalf of the poor beleaguered souls out there, taking these people to tasks for violating these rules and that we’ve (supposedly) all agreed to live by?

      The job of the criminal defense attorney absolutely is “to protect the rights of the client, defend him from the government, and to preserve his personal liberty. Period.” For me personally, I’d rather do that within the bounds of established laws so as not to lose my precious, precious shiny gold card.

      To be fair, my flag-waving manifesto did go a bit too far. You and I can absolutely agree that with well over 2,300 different felonies (11 involving oysters… GRITS!) in this state that the law is often stacked against our client. Further, procedurally, criminal defendants are afforded less protection than anyone else in the courthouse. And for the love of baby Jesus, let it never be said that I was talking about enforcement of the Texas Penal Code.

      But my point is this… as a criminal defense lawyer it is our job to challenge the government at every reasonable opportunity. If our client is entitled to a right under the law, we should do everything within our power to make sure he’s afforded that right. It’s our job to have illegally seized evidence thrown out, lying cops exposed, and to keep DAs from hollering about how the jury should convict “because this community won’t tolerate drunk drivers and we need to send a message with our verdict.”

      With a caseload full of guilty clients (I wouldn’t know… most of my guys have told me they didn’t do it), you should understand better than anybody that the only thing that will “get the guy off” is enforcing absolute and strict compliance with constitutional and procedural safeguards and forcing the prosecutor to prove his case so thoroughly as to overcome every single reasonable doubt.

      To me that means making sure the system works and defending the Constitution and the procedural protections put in place by our system of laws. Here I go being idealistic again…

  4. You write:
    “Even if the system is not so broken that it needs to be stopped, the choices that future lawyers like Laura make can affect the balance of they system. If she becomes a prosecutor, she makes us safer but less free; if she becomes a criminal defense lawyer, she makes us freer but less safe. The two choices—more safety and more freedom—are mutually exclusive. So the prospective criminal lawyer gets to decide: is it better that we should be more free, or safer?”

    The problem, of course, is that no human is as powerful as the system is, and even a group of humans, banded together with a united purpose, are still not as powerful as the system is. Any system (legal, penal, education, etc.) is designed to manage groups of people too numerous to be managed any other way; and any system is, by default and perhaps by necessity, rife with shortcut thinking: Generalizations, stereotypes, simplistic ideas and ideals. Any institution, even if it’s better than nothing, is still worse than we’d hoped.

    In my view, the question is not “which do I value more, freedom or safety?” The question is “What path can I take that helps me to do more good than harm?” Because no matter what choice you make, in no matter what field, you’re negotiating a compromise with whatever enemies (or demons) you oppose.

    Boy, living a moral life sure is hard, isn’t it?

    • Laura, I’ve never read your blog, but you sound from your post here and your comments to Mark and Norm’s posts about it, like an exceptionally thoughtful and careful person, far beyond that of most lawyers and certainly most yet to practice. I think the prosecution needs more people like you. The problem is, I’ve known young prosecutors who practiced according to “do less harm” mantra, never old ones. The systems that I’ve worked in will beat those morals out of you or spit you from the assembly line.

  5. Some words of wisdom that I picked up from a veteran defense attorney… “You play by their rules and you will lose.” Of course you have to be ethical, but when the system effectively crushes defendants day in and day out, I have no desire to be an idealist.

  6. After making my over to her blog I now know why she wants to be a prosecutor. She has been a victim of felony crime, of which the perpetrators have escaped prosecution.

    I’m gonna venture out onto a limb here and offer that you are the last person that should be a prosecutor. When you combine the pollyanna idealism with the victim of unpunished crime, you are one of the last people I want at the prosecution table.

    • Nick, her reason to become a prosecutor scares me. “Victim Stance” is an element of criminal thinking to be avoided. One of my motivations in my own crime was just that. It gave me permission to get back that which was taken from me. I USED “Victim Stance” thinking I was entitled to justice, ergo I was allowed, by myself, to resolve my problem (unresolved grief) using another as a “replacement”.

      So, with all the love of my heart and the divine charms of my mind, I would personally recommend that she enroll in a decent victim’s class and do some restorative justice time. But, please avoid the programs that would tell you that you are endowed by the Creator to be self-identified as a Victim for ever. Sorry, the whole idea is to get past that lest you offend another, as most, if not all, offenders were once victims.

      To further make my point, check the remarks on this story and see what defenders have to deal with… the will of the common man:

  7. Why should victims of crime be discouraged from becoming prosecutors? Should the same rationale apply to victims of injustice who want to become criminal defense attorneys? Or other types of lawyers, for that matter? Why should a personal experience that impassions someone toward a particular career choice be condescendingly viewed as a liability or something to be feared? As long as she seeks justice and not vengeance for her own misfortunes, more power to her.

    @Charlie: Happy 4th, buddy. I get your point.

  8. Ya know what, maybe they are exactly who need to be prosecuting cases.
    “As long as she seeks justice and not vengeance…” Where does one end and the other begin my good sir? “Justice” and “vengeance” are relative terms.

    [Nick, per my anonymity policy, please use your first and last name so that I don’t have to keep editing your comments to include it. MB]

  9. I work in education and have found it interesting and instructive to learn what sorts of experiences my colleagues have had with education themselves. There’s a kind of split: There are the people who always excelled in school and therefore decided to do MORE school! And since education served them so well, it made sense to pursue education as a field of study.

    Then there are the people who went into education because of the deep injustices that system visits on learners. Usually (but not always) these people come from one or more of the populations that are marginalized by the education system, and they tend to have a there-but-for-the-grace-of-god look about them.

    Education is a lot like the law: Everybody has had an experience with it, usually from the inside. In education, though, we don’t spend a whole lot of time deciding which sorts of people would make the “best” educational researchers; it’s the quality of the work, and not the qualities of the person, that end up mattering.

    I don’t know if it’s different in law, but it certainly seems unfair to make decisions about what sorts of people, with what sorts of experiences, would be best at what sorts of law. We do what we do because of what has happened to us–this is true across the board. If someone is great at criminal prosecution, who cares how she got there in the first place?

    • Honestly, with two more years of tax and commercial law and family law and estate planning and… (whatever the hell else they make law students on the east coast study), there’s a good chance Laura may never go into criminal law. She may get a job offer at a big firm for a six figure salary. She may decide that she likes contracts better than criminals. She might find the love of her life and run away to Pocono to sell seashells by the seashore.

      The discussion (I don’t think) was never about her individually. But a prosecutor with an ax to grind is a scary thing. Enough of them are out for blood already. The worry is that somebody in her situation would take her past out on others. And that’s not fair no matter which way you slice it.

  10. As an attorney,and more particularly, as a criminal defense attorney, there are two sides to me. One, the citizen, wanting to be safe and expecting bad guys to be punished so that I and my family remain safe. Even criminal defense attorneys are entitled to such desires outside the realm of their professional life. This philosophical side of me wants justice, but I don’t want people over-prosecuted, prosecuted for crimes that shouldn’t be crimes, or for the innocent to be found guilty, even when the system worked. This side of me is not wedded to “the system” for the sake of the system, but to an idealistic Utopia.

    The other side of me, the criminal defense side, just wants to win my case for my client, justice and safety be damned. When I am working, which is most of the time, the Utopian philosophical side of of me is not present. I am working for justice, but only for my client. If there is no way to avoid punishment all together, then my job is to minimize the damage to my clent. This side is not concerned about the public’s or my family’s safety, “the system,” or justice, only the freedom of my client.

    When someone asks me how I can represent rapists and murderers and the like, I reply that my job is not to judge the person or his alleged crime, but to make sure an innocent person is not convicted, or, if not innocent, at least not convicted of a greater crime than that which was committed, and then to insure that any punishment assessed is not greater than what the client and the crime deserves. And, I reply, my job is to make sure the government is held to the highest standard each and every time and, only in this way, do I also help to insure the freedom and liberty of the person to whom I am talking.

  11. If the young law student wants to seek ‘justice’ in the courtroom, it’s located in a box next to ‘truth’ at the bottom of a bottomless pit. A conviction, even of the guilty in fact, is not equal to justice. The late William Kunstler gave a speech where he said the great myth of our society is that everything that’s done through the established system is legal, and the word ‘legal’ has a powerful psychological effect on us. It makes people believe that there is an order to life and an order to a system. And that a person that goes through this order and is convicted has gotten all that is due him. And therefore society can turn its conscious off. The thing about a trial is that it has an aura of legitimacy to it. How many men have been sent to die through this ordered system? Sacco and Vanzetti – legal. The Haymarket defendants – legal. The hundreds of rape trials throughout the South where black men were condemned to death – all legal. Jesus – legal. Socrates – legal. Tyrannies last longer when punishment of individuals is ordered through some semblance of legality.

  12. I have also been the victim of a particularly terrible felony crime, and one of my best friends was murdered. I think I would be very unsuitable as a prosecutor because of this. Justice should never be about the victims. In my opinion, this is one of the reasons why justice is blind.

  13. This is what I wrote to Laura:

    I am so sorry that you were the victim of a crime. I have been the victim of a terribly violent felony crime, which has also marked me for life. My best friend was also murdered.

    The problem with your logic here is that vengeance has nothing to do with justice. The worst atrocities in the history of the world have been perpetrated by people who believed they were victims. Be careful that you don’t confuse your desire to be empowered after surviving (you were victimized my darling, but you are not a victim, you are a survivor, which is a thing of beauty), with just a desire for power.

    Much love and caution to you,

  14. I am not a Attorney though I have been around judges, lawyers, prosectors and cops. I am not a authority on any of these. If we had a system that worked and was not broken then the laws would be equal for all peoples and not a sham that they are now. It is my observation that the job of a prosector is to convict and not uphold the laws or rights of anyone. The job of a Judge is to be the impartial referee(Never happens). The job of a good attorney is to defend their client and see to that the laws and statutes are upheld and not used as a tool for a criminal organization looking for money, power or protection. I myself have witnessed prosectors who are nothing more than the worst kind of criminal working with those in the court system to deprive and attack certain individuals in their communities and I have met with attorneys who refuse to get involved for reasons of their own or who after a trip to the judges chamber come out slack jawed and crest fallen throwing their client to the wolves. This is not justice nor even simple injustice. It is a criminal organiszation utilizing terroristic methods and we all know it is here in our very own backyards.
    All one has to do is decide which side they want to be on.

  15. With much interest I followed this string. As I taught Charlie and Nick, I am probably not the most fair arbiter of these things, BUT, “J”ustice has nothing to do with any of this pie in the sky crap. If it were about “J”ustice then someone with a big “G” in front of “od” would make these decisions. As that’s not going to happen, here’s the role of the defense lawyer: (1) to take care of his/her family and his/her’s own mental (and physical) health, (2) if they are believers, to maintain their soul so as to have some reward at the end of all this, (3) to protect the citizen client from the abuses of the system that all too often affect them because of their class, race, gender, addictions, or other definable characteristic apart from the norm, and (4) to resist idealistic politicians that make their careers off the backs of our clients. THAT’S JUSTICE for me and mine. Anyone that thinks “Justice” has anything to do with punishing anyone, is just a frustrated, angry, passively aggressive, unhappy, unenlightened turd. And yes, I mean you. I just hope anyone that thinks this way finds themselves cuffed and stuffed for some of the non-sense I see that passes for law enforcement. Then you’ll understand the true meaning of “Justice.” As Goldstein puts it justice is for “just” “us,” and I make no bones about the “us” is not me or my kind. And that’s good enough for me.

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