The Personnel Problem: My Proposed Solution to Assembly Line Injustice
Our criminal justice system is broken. Instead of fairly applying the rule of law and striving for just outcomes, it prioritizes shuffling people, particularly people of color, into prisons. At the heart of this system are prosecutors: as the most powerful actors in the legal system, they have a significant responsibility for ensuring that the system is equitable and fair. All across the country, prosecutors are failing to act out the values of our legal system. They reject the standards of prosecutorial function set forth by the American Bar Association when it suits them. They make decisions to further their own career aspirations even when it contradicts their current responsibilities. And worst of all, they strive for convictions at the expense of the innocent. I believe that combining prosecutors’ offices and public defenders’ offices into a single entity and requiring the attorneys to rotate and serve as both prosecutors and public defenders would fundamentally change the practice of prosecution in our legal system to strive for real justice.
Prosecutors wield inordinate power in the criminal justice system. They act as gatekeepers, deciding who must face charges and who can walk away from an accusation without consequences. While their primary function is supposed to be “to seek justice within the bounds of the law, not merely to convict,” most prosecutors define success in terms of the number of convictions they secure. This has resulted in hundreds, if not thousands, of innocent people being sent to prison for crimes they did not commit. Prosecutors’ greater resources and little oversight effectively make the criminal justice system into an assembly line to prison. When these advantages are not enough, some prosecutors skirt rules and commit misconduct to ensure convictions. For example, when prosecutors recognize at trial that the opposing attorney is not doing a sufficient job arguing on behalf of the accused individual, they have an obligation to advise the court that the accused person is ineffectively represented. Instead, prosecutors often take a further step to ensure the accused person will go to — and stay in — prison: “…it has been the practice of members of the prosecutor’s office to put favorable comment about the defense counsel into the trial record whenever they are concerned that the issue of ineffective representation may legitimately be raised on appeal.”
Prosecutors are aware and unapologetic about their role in the legal system. Paul Butler, a former prosecutor, wrote about the interview process to become a prosecutor: “‘Eric Holder [who, at the time, was the U.S. Attorney for the District of Columbia] asked prospective prosecutors during interviews, “How would you feel about sending so many black men to jail?” Anyone who had a big problem with that presumably was not hired.’” Furthermore, many prosecutors embrace this reality for their own personal gain. A law professor and historian has exposed the data behind what he calls “prosecutor politicians.” This data supports the anecdotal evidence that the role of prosecutor has become “a stepping stone for higher office.” In 38 states and across both parties, a significant number of political officials have prosecutorial backgrounds, including 19% of governors and 10% of U.S. senators. This does not even include judges, who are often former prosecutors. Holding a position of prosecutor has been seen as a key to higher office and punitive policies (often referred to as “tough on crime” policies) a necessity for reelection.
The current, most famous example of this trend is Vice President Kamala Harris. She served as the District Attorney of San Francisco and then the Attorney General of California. In both roles, she developed a reputation for excusing police misconduct and continuing to fight cases of wrongful convictions by exploiting legal technicalities to ensure that sentences were not overturned. She went from prosecutor to U.S. Senator and then, after an unsuccessful campaign for president, she joined President Biden’s ticket and was elected as Vice President. A promising sign of change, Harris had to answer for her punitive record as a prosecutor during her presidential campaign. More cities are electing progressive prosecutors, including Chicago and Philadelphia. These prosecutors are trying to change the punitive practices for the betterment of their cities’ public safety, but are facing significant pushback, even from the attorneys who work for them.
I propose a one-office structure in which attorneys would have to serve rotations as prosecutors and public defenders. I believe it would change the makeup of prosecutors for the better. Currently, some prosecutors are conviction-driven attorneys with aspirations for higher office. They have little regard for the accused person whom they are depriving of their freedom and they are more interested in making sure that person goes to prison than ensuring that the process is fair. If the prosecutors’ office was combined with the public defenders’ office and attorneys had to rotate in both positions, it would attract fewer candidates who are only interested in securing convictions and moving on to the next position. As one author and former prosecutor put it: “If prosecutorial service is no longer a golden ticket to a successful political career, then being a prosecutor could lose some of its luster to young lawyers seeking power and prestige. Perhaps that’s a good thing. In these often overlooked but incredibly important posts, we need people committed to advancing the interests of justice, not just their own ambitions.” A one-office structure would be more likely to attract attorneys who would strive for justice and public safety above conviction records and career aspirations.
The one-office structure would also have a significant difference on the makeup of public defenders. Currently, public defense is funded and structured differently across the country. The federal system funds both governmental entities that provide public defense and private, nonprofit public defender organizations. In the states’ judicial systems, there are several systems that provide public defense: some have public defenders’ offices with attorneys dedicated to public defense; some private defense attorneys are appointed on a case-by-case basis to indigent defendants and pay per hour, per case, or per event in a case; or some have contracts with private attorneys, law firms, or nonprofits that are paid flat fees to represent indigent defendants. These systems differ by state and county, and some use a combination of all three systems to provide for public defense. When private attorneys are paid with a flat fee or their compensation is capped, they are disincentivized to provide a zealous defense for their indigent client. Many legal scholars find that having a dedicated public defenders’ office that is funded by the state government is the best system for providing sufficient legal defense, training attorneys to properly represent indigent defendants, and avoiding the larger back-end costs created by trials with inadequate defense attorneys.
A one-office structure would provide dedicated indigent defense from qualified, zealous attorneys. The public defenders’ budget would be tied to the prosecutors’ budget and it would depend on caseload and case complexity. Salaries would be standardized for attorneys, as they would rotate between serving as prosecutors and public defenders, without earning more for one position than the other. This would ease the legislature’s difficulty in funding public defense, as currently many legislators refuse to increase funding to public defense as to not appear soft on crime. If the funding went to a joint office and was distributed equitably according to each case’s need, legislatures would no longer tie public defense funding into convictions, so that public defenders are only funded when their clients are convicted, or need to be threatened in order to fund public defense at all. People who cannot afford representation would be represented by attorneys who have been well-trained to argue in their defense and would not be monetarily incentivized to end cases as quickly as possible.
Currently, some attorneys serve as prosecutors because they want to ascend to higher office and they believe securing as many convictions as possible is the best way to achieve their goals. Some attorneys provide defense to people who cannot afford representation on the side of their private practice without care for their clients. I believe the one-office structure would likely eliminate both the power-hungry prosecutor and the apathetic public defender from serving in these positions. Instead, it would attract progressive prosecutors and young attorneys who want to be a part of a system of justice. Even if attorneys join the office with other motivations, the rotating system would cultivate empathy. At the very least, attorneys acting as prosecutors would strive for fairness rather than using misconduct to create competitive advantages because they will expect the same when they are on the other side. But more so, they will “connect… on a human level” with those who they represent as public defenders, which will impact their mindset of the punitive legal system.
While some might think that the jobs and motivations of prosecutors and public defenders are too far to be reconcilable, and that no attorneys would want to do both jobs, I believe that the two positions are closer than they may seem. Prosecutors often feel that they do their jobs for the victims; they are providing justice on behalf of people and their families who were hurt by someone. Public defenders often feel sympathetic towards the accused individuals who were forced into a bad situation, made a mistake, or were wrongfully accused. These two positions are not so different. Wrongfully accused people are victims of the legal system, instead of victims of a crime. Crime victims deserve transparent and just legal proceedings as much as accused individuals. If attorneys refused to work under this one-office structure, perhaps they are not the attorneys that ought to be trying these cases in the first place. A one-office structure would significantly benefit the criminal justice system by putting the right attorneys in important positions to affect justice, the way the legal system ought to be.
