Here’s a modest proposal in the spirit of Jonathan Swift from someone who has spent a career at the criminal defense bar: let’s divide American prosecutors into two separate and independent offices.
One will be an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.
If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.
If we do this, we will improve prosecution performance and prosecution accountability. We will also improve the lives of individual prosecutors.
OK, I can tell from your expressions that this will take some explaining.
The police “make” the cases: they are responsible for the production phase of the justice system. The defense lawyers “try” the cases: they are an element of the system’s inspection stage: they test the cases the police have “made” in adversary presentations to neutral jurors.
American prosecutors have responsibilities in both stages: production and inspection.
These roles can conflict. In fact, many prosecutors feel that they are doomed to a permanent double-bind: follow the letter of the rules in either role, and you’re screwed in the other one.
Two cases decided by the Supreme Court this term implicating prosecutors should remind us of why experts in all industries believe that end-of-process inspection a lousy means of quality control.
Inspection is easily evaded—and usually captured—by the people whose work it is meant to evaluate.
In Connick v. Thompson , the prosecutor hid evidence generated during the production stage that would have helped the defense at the inspection stage.
It wasn’t a close case; the Thompson prosecutor must have known that he was supposed to disclose the information.
But you’ve been convinced that your “real” job is to win trials and pass the inspection (no matter what the formal rules say), then any fact that interferes with succeeding in that job is a target for excision regardless of the formal rules.
In expansive, gray areas of decision-making, following the rules literally will often seem like shirking your “real” duty. By violating the letter of the rules, you can game the inspection, and do your real job.
Or, even better, maybe you can completely avoid being inspected.
No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.
In Missouri v. Frye the Court took belated note of this fact, recognizing a right to counsel in plea bargaining in part because “longer sentences exist on the books largely for bargaining purposes.”
“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.
Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.
Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.
He can spend your money to avoid his trials.
A prosecuting solicitors office, aligned with the government agencies that actually have to pay for the prison time aimed at punishment or rehabilitation—but with no incentive to pay to avoid a trial inspection (the solicitors don’t do trials)—is a better place to determine appropriate sentencing investments.
The solicitors’ performance would be judged by the accuracy and completeness of the cases that they (working with the police) compile and send for adversary inspection.
They would have no incentive to ignore or suppress information: in their role, more is better, and comprehensiveness is the goal. The prosecuting solicitors, answerable to the people responsible for spending, would set the upper price in $40,000 prison-years that the government would invest.
A prosecuting barrister’s office, expert in presenting the prepared cases in court, would present the group of cases that had to be presented.
It could be a small elite cadre of courtroom experts. (After all, only four percent of cases actually need trial lawyers.) It could draw on a pool of veteran former prosecutors and attorneys in private practice for individual cases where “dream team” lawyers are required.
We could let them wear wigs and gowns. (Maybe, in other jurisdictions, special boots and spurs.) They could not ratchet up the leverage to force a guilty plea.
The barristers’ performance would be judged by success in presenting cases at trial, not success in avoiding trials.
This scheme doesn’t work unless you have good solicitors and good barristers. But they may be easier to find than it seems. Lots of talented lawyers hate the idea of being in courtrooms and so they avoid prosecuting jobs: these lawyers might make good solicitors.
Lots of oddball trial lawyers don’t fit comfortably into office routine: those are your barristers.
But the key point is that the solicitor/barrister distinction realigns real-world professional incentives with the goals of the criminal process.
A jury trial is not a necessary evil, something to be endured whenever it can’t be avoided.
When we need to determine disputed facts, a jury trial is a necessary good.
Of so the Founders thought, anyway.
The jury trial, and representative government, are, as John Adams wrote, “the heart and lungs of liberty. Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”
Clarifying the prosecutor’s ambivalent role in the criminal process can reduce the danger that our bureaucratic structures are inducing us to spend expensive years of incarceration on avoiding the jury trials that were a prime motivation for the Revolution.
We can stop encouraging prosecutors to spend years to avoid trials.
James Doyle is a Boston attorney and the author of True Witness: Cops, Courts, Science and the Battle Against Misidentification (Palgrave 2005.) He is a 2012 Visiting Fellow at the National Institute of Justice. The opinions expressed here are his own. He welcomes comments from readers.