Last month, hundreds of people came to Beacon Hill to advocate for criminal justice reform. It is not the first time this happened and it probably will not be the last. For many, this advocacy is personal. It was personal for me because I was a prosecutor, so I had tools at my disposal that allowed me to irreparably harm people. Now I can make amends.
But when it comes to this reform, we must remember that most of the daily grind of the criminal justice system happens not in legislative hearings, but in district courts. And while the system is theoretically balanced, any honest prosecutor will tell you that, in reality, district court prosecution is a one-sided affair.
Even if our Legislature were to pass criminal justice reforms, prosecutors would still hold most of the power in daily proceedings. Prosecutors can steer police actions. They can influence sentences from the very beginning of a criminal process. They can drag out a defendant's time in the system by withholding evidence or being coy about its availability.
None of this is intrinsically wrong. Some of it can run up against ethical boundaries. All of it happens in district courts every single day, which means that no one -- no advocate, legislator, nor judge -- is in a better position to advance progressive criminal justice reform than a prosecutor. This power to change the system lies in decisions prosecutors frequently make in fleeting moments -- so being aware of those moments and the consequences of those decisions is crucial.
When a cop calls you at midnight to ask about dubiously removing evidence from the home of someone just arrested; when you know a clerk routinely allows disproportionately harsh charges to proceed to arraignment; when exculpatory evidence could be obtained but won’t be without a prosecutor’s intervention — these are the moments when prosecutors’ decisions, taken together, impact our system immeasurably.
It’s easy to encourage overzealous evidence-gathering, use harsh charges to leverage plea deals on lesser charges or avoid difficult conversations with witnesses about preserving evidence. In fact, the pressures of the job can make those decisions almost necessary. But prosecutors must have the training and the encouragement to prioritize decisions that err on the side of caution and fairness over decisions made solely for the purposes of convictions or sentences. None of these examples is exceptional; each is drawn from something I frequently experienced directly — like many other prosecutors -- or heard anecdotally.
I remember one defendant who faced a uniquely egregious charge that wasn't justified by anything in the police report. A colleague and I believed the clerk had let the charge proceed to arraignment because of his professional relationship with the police officer who wrote the report. It wasn’t the first time this had happened so we knew we had to act as a counterbalance to that clerk. We agreed we should offer to dismiss the charge. But the defendant's attorney filed a motion to dismiss it, and, almost immediately, the overwhelmingly and unnecessarily adversarial nature of prosecution kicked in. We began building an argument against the defense motion. I stopped thinking, "How can I use my power to limit the consequences of a clerk's bad decision?" and instead thought, "How can I win this argument?" It is only in hindsight that these pressures become obvious.
So how do we improve and help prosecutors make decisions that advance the highest ideals of our criminal justice system? The easy answer is training. We should expect prosecutors not just to be trained in the art of the trial — how to write motions, present evidence, raise objections and conduct plea-bargaining — but also in the overarching values of our system.
We should invite defense attorneys and former defendants to speak to new prosecutors about life on the other side of a case. We should make sure prosecutors learn and are able to analyze the American Bar Association’s Model Rules of Professional Conduct, especially the comment to Rule 3.8: “A prosecutor has the responsibility of a minister of justice.” We should urge prosecutors to participate in an active dialogue with other court personnel who too often are only called upon by a prosecutor when the prosecutor needs something.
But does a prosecutor’s power really beget this responsibility? To begin answering that question, I urge you to read R. Michael Cassidy’s, "Prosecutorial Ethics." Cassidy writes: “A prosecutor may not adopt a ‘win at all costs’ approach to his cases. At a minimum, the obligation to seek ‘justice’ implies a duty on the part of prosecutors to take steps to insure ... truth, procedural fairness, and proportionality.”
Let those words, the words of the American Bar Association and the words of the many families whose lives have been disproportionately impacted by a prosecutor serve as an important reminder to all of us: For progressive criminal justice reform, we should — indeed, we must — look to the prosecutors on the front lines of the criminal justice system, and, just as importantly, to the district attorneys who hire, train and support the actions those prosecutors take every day.