Judges and prosecutors are complicit in injustice

In her academic article “Can You Be a Good Person and a Good Prosecutor?” law professor Abbe Smith implored lawyers “committed to social and racial justice” not to join a prosecutor’s office, urging them to think carefully about the moral implications of that choice. Smith was ahead of her time. When she wrote the article almost 20 years ago, the question was a provocative one, one that few were asking. 

As she observed, “almost nothing has been written about whether you can be a good person and a good prosecutor.” Smith understood the moral crisis with which we are faced and challenged the widespread perception of prosecutors as respectable upholders of truth and justice, practically above reproach. 

She demonstrated then what more Americans than ever are beginning to understand now: Prosecutors play an integral, even central, role in a profoundly corrupt and immoral system that has unjustifiably destroyed the lives of millions of Americans. 

Judges, too, are deeply implicated in the moral crimes of this system, but, like prosecutors, highly regarded in polite society; indeed the role of a judge is arguably among the most honored positions in American society. 

We think of judges as people who have especially good judgment and a strong moral compass. But to prod the reality of the criminal justice system even a little is to reveal the cold, callous cruelty of the people charged with upholding justice and the rule of law.

It isn’t that judges and prosecutors have merely turned a blind eye to the rot of systemic racism and injustice at the heart of the criminal justice system. 

Rather, they have been actively complicit in advancing and reinforcing this system, working directly at odds with efforts to reform it. Given the tiny fraction of criminal cases that proceed to trial, judges have effectively abdicated their role, allowing prosecutors to coerce defendants into plea bargains whose terms force defendants to give up their most important constitutional rights. 

Criminal court judges could easily intervene to begin to restore the criminal courts to something more than the shameful farce they’ve become in the age of the plea bargain. 

These judges are parties to an imposture, carrying on the pretense that criminal defendants enjoy the benefits of an adversarial process and a presumption of innocence. On the contrary, criminal cases have been reduced to mere administrative proceedings in which defendants (even completely innocent ones) accept long, harsh sentences under duress. 

Judges also routinely fail to scrutinize questionable evidence offered by prosecutors, including, notably, false testimony from police officers who lied under oath (the widespread phenomenon even has its own little name, “testilying”). They virtually always uphold illegal searches and arrests, agreeing with police officers in finding that there was probable cause, thus making the existing constitutional standard effectively meaningless. 

Prosecutors are unique among advocates; their client is the state, and the stakes are unusually high, as a victory for their client frequently means the forcible deprivation of a citizen’s liberty. Thus do their ethical obligations reflect this categorical difference, at least in theory and on paper. “A prosecutor’s duty is to seek justice, not merely to convict,” according to the American Bar Association’s model ethical rules. 

Prosecutors can behave much less ethically than other lawyers, largely owing to the fact that they have little incentive to take their ethical duties seriously. There are notoriously very few consequences for prosecutor misconduct, and of course, prosecutors know it. They cannot be held civilly liable for their acts as prosecutors, and state bars (the same organizations that have written so many nice-sounding words in the wake of George Floyd’s murder) almost always refuse to hold them to account.

And, again, it’s not just that judges and prosecutors, when they break the law or violate their ethical obligations, are not meaningfully disciplined or otherwise held accountable, which would be bad enough; it’s that unethical and often criminal behavior is itself the job — is inherent in most of what they do. 

It simply isn’t possible to understand the criminal justice crisis in the United States without properly understanding how these officers of the court, ostensible stewards of justice, have worked for decades to build a system of overcriminalization, blatant race-based discrimination, rampant police brutality, and mass incarceration. 

The French anarchist Pierre-Joseph Proudhon, echoing  Plutarch, captured the true character of the law as it has functioned in practice: “Laws! We know what they are, and what they are worth! Spider webs for the rich and powerful, steel chains for the weak and poor, fishing nets in the hands of Government.”

The legal profession is an old and learned one, whose members are esteemed and respected as leaders in society. Lawyers occupy a position of great privilege. To be worthy of that esteem and respect, lawyers have a duty to use that position of privilege to fight injustice — or at least not to actively assist in carrying out injustices.

Professor Smith was right at the turn of the millennium: Law students and young lawyers shouldn’t become prosecutors. Lawyers who are currently prosecutors and regard themselves as decent people should reflect on whether it is possible to do anything in the role but further what is a catastrophic moral crisis. 

David S. D’Amato is an attorney, an expert policy advisor at both the Future of Freedom Foundation and the Heartland Institute and a columnist at the Cato Institute’s Libertarianism.org.