A Note To Laura McWilliams: Prosecute, If You Must. But Be Wise
In a better world we could all be prosecutors, at least some of the time. I know I wish I had the experience of prosecuting a person accused of a crime. I was reminded of this by reading the post of a law student, Laura McWilliams, who has decided that she wants to land on the state's side of the aisle.
I've frankly never fully understood this business of taking sides for life in the courtroom. Trial is drama. It is the confrontation of the state versus an individual accused of breaking the law. Often those accusations are wrong; sometimes the accusation is right. What to do about the transaction is the law's business.
In England, barristers, or Queen's Counsel, are called upon to both prosecute and to defend, although obviously not in the same case. That seems a far more sensible system. The prosecution does not develop the sort of pack-like mentality that comes of close association in pursuit of common goals, year after year. Rotation of trial counsel also keeps law enforcement accountable; it could break the paramilitary pall that comes of ranks closed forever against the world. I am not a close student of the English criminal courts, but I wonder whether police lying and the code of silence is as prevalent there as it is here.
Clarence Darrow got it right a century ago when he said "there is no justice, in or out of court," so I do not believe the administration of justice would be improved by a rotation system. I do think that the purposes of prosecution would be better served, however.
We are taught in law school that the criminal justice system serves four ends: general deterrence, specific deterrence, rehabilitation and retribution. It is apparent that we are failing to meet those goals. The United States imprisons a larger percentage of its population than any other industrial nation, and for periods far longer than our counterparts. The criminal justice system fails to meet the goals of deterrence and rehabilitation. It merely punishes, often to no end.
Would the system improve and be less wasteful if we abandoned professional prosecution?
One benefit would be that the state, our grandest of legal fictions, would no longer be represented in the prosecution of criminal offenses by a caste apart. Prosecutors are simply unaccountable. Legislators pass laws, often requiring mandatory prison sentences. Much though they rail about a defendant's need to take responsibility for the consequences of their actions, the criminal justice system avoids making prosecutors accountable for what they do. "I am just following the law," they sometimes say, as they hone in to destroy a person for an offense, consider the Romeo and Juliet sex offenses, that they may well have committed themselves.
Prosecutors aren't alone in avoiding responsibility for what they do in the name of justice. In a perverse sort of way, the separation of powers doctrine invites participants in the criminal justice system to wear moral blinders. Lawmakers pass laws defining offenses and mandating punishment. Yet these lawmakers are not required to set foot in a courtroom; their decisions are often driven by the most garish headline of the day. Prosecutors then seek convictions for violations of these laws, regardless of whether the law, and the consequences of violating it, make sense. And judges, at least in Connecticut, then step in and tell jurors simply to find facts. Is the defendant guilty or not of the offense charged? Jurors are told to ignore the punishment to be imposed. That is the judge's job. Except the judge's hands are tied by the legislature. Neither judge, not lawmaker, nor prosecutor ever does what defense counsel does: look the defendant in the eye and consider the consequences of a conviction.
If we permitted lawyers to rotate, to serve sometimes as defense counsel, sometimes as prosecutor, we might get a criminal justice system that was more effective in dealing with deviance. Perhaps lawyers would avoid the irresponsibility now inherent in the system, a state of affairs in which judge and prosecutor both are encouraged to avoid responsibility for the consequences of their job by simply saying that the legislature, men and women who never step foot in a court, made me do it.
Laura McWilliams says she is drawn to the prosecution side of the aisle. Frankly, I am glad someone is. Although I am a criminal defense lawyer and I relish the role of outlaw, I am not so far outside the law that I am willing to forgo the protection of the state as regards murder, rape, robbery and other offenses that undermine my peace of mind. I, too, seek the state's protection against all the things that go bump in the night.
We need prosecutors. But we need prosecutors who are something other than caricatures. Forcing lawyers to play forever on the same side of the courtroom does not make for better outcome: It guarantees group think and inefficiency. Prosecute if you must, Laura. But never forget that it is a person you are prosecuting; you will represent the state for a lifetime, and, truth be told, never meet your client.