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.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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