MISBEHAVING PROSECUTORS: A USA Today investigation finds egregious misconduct at the Department of Justice, with few consequences. . . . USA Today’s finding of little to no sanction for misbehaving prosecutors is consistent with other studies. Consequences, like taxes, are for the little people. “The number of federal laws reaches well into the thousands, and it’s growing. Many are so broadly written they allow prosecutors to ring just about anyone they please up on federal charges. This creates a system driven by politics, not justice. It makes criminals out of all of us, making actual enforcement of the law arbitrary and corruptible. Worse, every incentive for a federal prosecutor pushes in the direction of winning convictions, with little if any sanction for crossing ethical and legal boundaries in the process. It’s a system that’s not only ripe for abuse, but that actually rewards it.”
Maybe we should go for a “loser pays” system in criminal law. Couple that with fully-informed juries and you could get somewhere . . . .
Plus this: “Public choice theory teaches us that public servants act in their own interest in the same way private sector workers do. There’s nothing transformative about working in a DA’s office as opposed to, say, a white shoe law firm. You don’t shed self-interest to become purely noble and altruistic once you’re sworn into office. If anything, prosecutors should be given more scrutiny and oversight than other members of the legal profession. Private lawyers at best can influence courts and government officials to move money around. Prosecutors put people in prison and, in some cases, send defendants to their deaths. When they cheat, there ought to be consequences.”
UPDATE: Reader Michael Altman writes:
Dear Mr. Reynolds, as a former Assistant District Attorney in New York county, my experience is very different from your perception. When we first joined the Office Mr. Morgenthau made clear to us that our obligation was to “do justice,” not get convictions. He told us that he was most proud of the cases he ultimately declined to prosecute. While many prosecutors’ offices are not run as they should be, that doesn’t change the essential differences between prosecutors and attorneys in the private sector (including white shoe firms). A prosecutor’s obligation is to see justice done, the obligation of an attorney in the private sector is to zealously represent his or her clients within the applicable ethical guidelines.
The incentives don’t point this way nowadays.