« Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals | Main | Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case »

June 24, 2016

Do all or most prosecutors really end up "hostile to constitutional rights"?

The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights."  The full article is a must-read for lots of reasons, and how it gets started should highlight why:

Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.

Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.

When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly.  I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end.  I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights.  I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them.  I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types.  Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them.  Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.

June 24, 2016 at 01:27 PM | Permalink


I think, without a doubt, that the culture that calls convictions set aside on, for example, exclusionary rule grounds, a "technicality," breeds a contempt for constitutional principles from laypeople, to cops, to prosecutors and on up to the US Supreme Court. So, yes, abso-freakin-lutely.

Posted by: Fat Bastard | Jun 24, 2016 2:05:56 PM

I don't see how one addresses the prosecutor problem without addressing the judge problem. If prosecutors are making bad faith arguments and winning then that is a major--perhaps the major--problem. They are winning in my view because the Constitution is at odds with itself. On one hand the preamble states that a core part of its mission is "to ensure domestic tranquility" of which the criminal law is a major aspect. OTOH, after the Constitution was ratified the Founding generation went "oh crap" and immediately passed the Bill of Rights.

I've longed believed that judges at some deep level still see the Bill of Rights as amendments to--that is to say modifications of--their responsibility to help ensure domestic tranquility via the criminal law and that when push comes to shove domestic tranquility overrules the Bill of Rights. Scalia himself admitted as much when he made his comments about the internment camps during WW II.

So until one address this "pro-tranquility" bias I think prosecutors have a legitimate basis for the culture Ken criticizes.

Posted by: Daniel | Jun 24, 2016 2:41:52 PM

I think that Brady has led to some of this also---defendants can now tailor their defense to the prosecution's evidence. The tailoring would tend to irk me if I were a prosecutor.

There is no excuse for the making of bad faith arguments. Speaking of that, I think we are seeing some appalling prosecutorial abuse in Baltimore. There was NO basis to charge the bicycle cop. None. Yet they did. Where are the bar authorities? The judiciary?

And Fat Bastard, liberal judges' nonsense rulings should be excoriated.

Posted by: federalist | Jun 24, 2016 3:01:09 PM

Liberal judges like Antonin Scalia? Yes? You're barking up the wrong tree if you think I am liberal. Frankly both parties have gone far enough in their respective directions to have achieved fascism.

Posted by: Fat Bastard | Jun 24, 2016 3:11:34 PM

federalist, the thing you are missing is this: A trial has one purpose: To determine if the prosecutor has proven their case beyond a reasonable doubt. That means they have to disprove all reasonable theories of innocence. Historically, the defendant wasn't even allowed to testify as to the true version. This means that, even if it isn't the true version of innocence, the prosecutor has to disprove it.

The defense "tailor[ing] their defense to the prosecutor's evidence" through Brady is just calling attention to a version of innocence and force the prosecutor to disprove it. Complaints about that are just misunderstanding the prosecutor's burden.

Posted by: Erik M | Jun 24, 2016 8:59:49 PM

But, the show "Law and Order" tells me prosecutors (perhaps in the form of younger assistants) repeatedly are concerned about constitutional rights (they are sometimes a bit brutal, but often sort of feel depressed about it) & defense attorneys are mostly cackling miscreants.

I don't have any inside knowledge here but think the truth here is somewhere in between which different prosecutors having different views. Prosecutors as representatives of the people have an ethical duty to at times work against their immediate interests to prosecute and think the average prosecutor takes this seriously.

But, their general ethos is to prosecute -- it's their primary job. This is going to involve some threats to the rights of defendants, if only because they are less inclined to think they are threatened. That's why the public is merely represented in the criminal justice system by the police and prosecution office. They also have the defense side in our system, with its own ethos.

Posted by: Joe | Jun 24, 2016 9:00:42 PM

Erik, that's nonsense. Whether one thinks that Brady was correctly decided or not, the fact is that it allows for gamesmanship since defendants can put up false arguments that they know won't be exposed at trial. So that's a little more than holding the government to its burden . . . .

It's amazing how so many libs love to say that someone is "missing the point"---no, you are missing the point. The government's burden is what it is---Brady facilities, in many cases, a defendant's ability to put on a less than honest case secure in the comfort that he or she won't be called out at trial. That's the kind of thing that would harden many prosecutors.

Posted by: federalist | Jun 25, 2016 7:39:34 AM

A few years ago, a Michigan prosecutor convened a Grand Jury, to investigate who had brought cocaine to a local high school party and which students had used it. The parents of the 7 teens involved hired a single defense lawyer to represent the teens before the Grand Jury, and they waived any conflicts of interest. Before the Grand Jury, all 7 teens invoked their 5th Amendment privilege against self-incrimination and refused to answer the prosecutor's questions. After the Grand Jury failed to indict anyone, th prosecutor told the teens' defense lawyer that he intended to prosecute him for "obstruction of justice", for advising the teens to all invoke their 5th Amendment right against self-incrimination.

Posted by: Jim Gormley | Jun 25, 2016 11:11:25 PM

Rights to overcome?

There was a time when the some of the rights that are now so cherished were not even there. Miranda, Griffin, or even the exclusionary rule. Prosecutors are under no particular obligation to further retreat for the incremental expansion of rights that may not in fact be there.

Of course, this does not and should not grant any license for prosecutors, or anyone else, to make bad faith arguments or ignore misconduct. But why aren't prosecutors free to advocate that the remedy the defendant seeks, exoneration because the constable has blundered, is not the appropriate one. Frankly, my biggest criticism of criminal practice here in the Bay Area is a massive waste of resources litigating over rights resulting in considerably less focus on the question of whether the defendant is, in fact, guilty. The public that elects prosecutors has every right to consider that calculus when casting their vote.

Posted by: David | Jun 25, 2016 11:53:20 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB