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The Aim of the Prosecutor: Justice (Jan. 30, 2016)

As a deputy district attorney, I prosecute crimes. Think back to Law & Order. I’m the guy in the suit who hales a defendant into court to face charges.

Now, let me be clear. My job is not to get convictions; it’s to find the truth and, as trite as it may sound, do justice. That’s a huge responsibility, and I take it seriously. After all, criminal defendants face stiff fines, service hours, jail sentences, prison terms, and more; in the worst cases, their very lives may be at stake. So, if the facts don’t support the charges, I’ll dismiss the case. In fact, I have an ethical duty not to prosecute a case I don’t think I can prove. I go to trial if—and only if—I have a good-faith belief I can prove the defendant’s guilt beyond a reasonable doubt.

People often ask me what’s the hardest part of my job. I imagine the answer will differ from prosecutor to prosecutor. For me, it’s the question of proportionality: How do I charge a case and ask for a sentence, in light of all facts and circumstances, so the punishment fits the crime? On the one hand, a more serious crime (or one with aggravating circumstances) deserves a stiffer sentence; on the other hand, a less serious crime (or one with mitigating circumstances) may warrant a lighter sentence. The punishment should be neither too harsh nor too lenient, but as proportional to the crime as possible.

It’s a delicate balance, and failure to strike the right balance—in either direction—can breed disrespect for law. If the sentence is too harsh, defendants may feel indignant, resent the process, and conclude the system is unfair. If, by contrast, the sentence is too lenient, defendants may fail to take the law seriously. They may view the justice system as a farce, in which they can get away with anything for a small price and face no real consequences for their actions. Worse, they may even feel emboldened to commit new crimes. Not surprisingly, my greatest day-to-day challenge is crafting charges and sentences that are meaningful, proportional, and thus fair—not just for defendants, but also for victims. This, in my view, is what justice requires.

Ultimately, the touchstone for all prosecutors is justice. In Berger v. United States, the U.S. Supreme Court said the prosecutor “may strike hard blows” but is “not at liberty to strike foul ones,” for the prosecutor’s responsibility is that “justice shall be done.” 295 U.S. 78, 88 (1935). Indeed, that should be the responsibility of everyone in our criminal justice system—from the police, to the bar, to the bench.

For me, justice is about fairness, which requires us to treat like cases in a like manner across space and over time. In determining guilt or innocence, we should look primarily to the facts of the case, not to the identity of the defendant (unless that identity is somehow relevant to the crime and admissible under the rules of evidence). This is the stage where, according to the popular refrain, “justice is blind.” If the defendant is convicted of a crime, a sentencing court may then consider aggravating and mitigating factors relevant to the defendant, in an effort to tailor a fitting punishment for that particular defendant. (For example, the law requires stiffer sentences for repeat offenders for certain classes of crimes.) This, in my view, is the process by which we do justice.

This process is worthwhile, for it not only makes convictions reliable but also keeps communities safe. In so doing, it meets the four ancillary goals of our criminal justice system—retribution, rehabilitation, incapacitation, and deterrence. By holding defendants responsible for crimes they commit, we ensure retribution. By tailoring sentences to defendants, we promote rehabilitation. By incarcerating the most dangerous offenders, we incapacitate them so they cannot harm the community during their incarceration. Finally, by imposing a fair and meaningful punishment, we deter them from committing future crimes.

Of course, the process isn’t perfect. The administration of justice seldom is. But I believe in our system, and I have seen firsthand how just it can be when men and women of goodwill administer it.

In the final analysis, the project of the law is to bring all uses of force under the constraint of reason. I believe in that project. I believe in law and order. And, as a deputy district attorney, I am proud to uphold—to the very best of my ability—the rule of law.

I have made this blog available for educational purposes only, not to provide specific legal advice. By using this blog, you understand there is no attorney–client relationship between you and me. This blog should not be used as a substitute for independent legal advice from a licensed professional attorney in your state.