The American prosecutor occupies a unique role among lawyers. The prosecutor has a higher duty than other attorneys. His duty is to seek justice, not simply to obtain convictions. As the American Bar Association notes, “The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants." [See Criminal Justice Standards for the Prosecution Function, Part I, Standard 3-1.2(b) (Am. Bar Ass’n 4th Ed. 2017)]
Prosecutors play a vital and indispensable role in the fair and just administration of criminal law. As members of the executive branch at the local, state, or federal level, they, like all other members of the executive branch, take an oath to support and defend the Constitution and faithfully execute the law as written. They do not make laws. That is the duty of the legislative branch.
On one level, prosecutors carry out the intent of the people by enforcing the laws their representatives passed and the governor or President signed. On another level, they work with the other two branches of government by sharing their views with legislators about bills up for consideration and with judges about the proper application of those laws in particular cases. In doing so, they occupy a unique, distinct role as key members of the executive branch with immense power and even greater responsibility.
The so-called progressive prosecutor movement—or, as we refer to it, the “rogue prosecutor” movement—upends the traditional and customary role of the prosecutor in American society with short-term and potentially long-term disastrous consequences on a number of levels.
Crime rates are the lowest they have been in decades. Incarceration rates are also the lowest they have been in decades. This did not happen by accident, nor did it happen because of the policies of rogue prosecutors. Instead, it happened because independent progressive and traditional prosecutors, who follow the law and believe in protecting victims’ rights and the right to be safe from crime and violence, created alternatives to incarceration, specialty courts, community outreach programs, and more. The rogue prosecutor movement depends in part on the public’s historical ignorance of those and other facts.
There is nothing progressive about the rogue prosecutor movement. It is dangerous and fundamentally flawed for four reasons:
- It usurps the constitutional role of the legislative branch;
- It abuses and misunderstands the role of the county prosecutor;
- Violent crime increases in cities where rogue prosecutors have been elected; and
- Victims are forgotten and public safety overall suffers.
Prosecution 101. At the federal level, the two parties to a criminal case are the United States and a defendant or defendants. At the state level, the state is represented by a prosecuting attorney who represents the people of the state. Regardless of whether the prosecutor is called the district attorney, the state’s attorney, or the commonwealth’s attorney, criminal cases pit the state against a defendant or defendants.
The criminal justice system in the United States is designed, like those in most common law countries, to be an adversarial system [See Adversarial Versus Inquisitorial System, The Doha Declaration, United Nations Congress on Crime Prevention and Criminal Justice]. Under that system, the prosecution and defense compete against each other, representing their respective clients. The people are represented by the prosecutor; the defendant is represented by the defense counsel. The judge serves as a referee to ensure that the trial is conducted in a fair and orderly manner and that the rules of evidence and criminal procedure are followed. We utilize the adversarial system rather than the inquisitorial system because we believe that it is the best way to get to the truth of the matter through a competitive, zealous process within the bounds of rules designed to ensure fairness to both sides.
The American prosecutor has unique ethical duties because of the awesome responsibilities that he or she has. A prosecutor must avoid conflicts of interest, one of the most obvious of which is spelled out by the American Bar Association: “The prosecutor should not represent a defendant in criminal proceedings in the prosecutor’s jurisdiction” [See Conflicts of Interest, Criminal Justice Standards for the Prosecution Function, Part I, Standard 3-1.7(b) (Am. Bar Ass’n 4th Ed. 2017)]. While prosecutors owe a duty of candor to courts and must respect the constitutional and legal rights of everyone, including defendants, it is their job to enforce the law zealously and represent the people, not defendants.
To accomplish their legal, ethical, and moral responsibilities, prosecutors must be and are independent. They work closely with victims of crimes, but they do not form an attorney–client relationship with them. Prosecutors are not the lawyers for victims of rape, child abuse, or robbery in the sense of establishing an attorney–client relationship with them. They represent the people and their interests, and since legislators have passed laws making rape, child abuse, and robbery criminal offenses, prosecutors prosecute on behalf of ...