This is an odd essay, because it spends a great deal of time justifying the part of the system prosecutors have nothing to do with, namely the mere existence of law, including criminal law, and no time justifying any of the things that prosecutors actually do. How does he deal with the necessity for constantly turning his blind eye to small-scale police perjury? How does he deal with the immense industry in useless narcotics incarcerations? How does the endless parade of youngsters who could have learned and been successful if only their dyslexia had been treated (78% of the defendants prosecuted by one ADA in the Bronx who paid to have them tested out of his own money, for example) affect him? All this "keeping the streets safe" crap only goes so far, really.

The Rules

Once we accept that our rules lack absolute moral authority, we must seek out alternative sources of justification. Or do we? Many irrational (perhaps "arrational" is a more appropriate description) rules are self-sustaining. If we've had these rules for centuries, and most people seem to accept them by default, then to whom do we owe any justification? But that is too lazy. Criminal law is a powerful weapon that inflicts a lot of harm, so the people on the receiving end demand an explanation. The justification is usually a mix of subjective morality, a property-oriented sense of fairness, and social utility. In other words, virtually every crime is defined as such because (i) there is general agreement that the action is morally reprehensible; (ii) we feel that those who take something away from others should have things taken away from them; and/or (iii) we are better off as a society when such action is discouraged. I am not asking you to buy into any of this. I am simply suggesting that should a rare philosophizing defendant demand an explanation, the system is ready to defend itself.

Most prosecutors I know point to a powerful but ever-elusive contract. Apparently, every member of our society has entered into an agreement by and among themselves - in consideration for all the benefits that the society offers, each party agreed to be bound by the rules, procedures, and conditions of that society. This amorphous contract is amended every microsecond, and its terms are a manifestation of the collective will. If you don't like it, too bad. Deal with it or get the hell out, right? This concept is fraught with all sorts of problems. The most glaring among them is that the contract is a complete fabrication. There is no comprehensive contract, implicit or explicit. Assuming arguendo that such a contract exists, it is an unconscionable one many of which signatories were coerced into accepting wildly unfavorable terms. The benefits are unevenly distributed, and the obligations are often inversely proportional to the benefits. With the exception of affluent adult-age immigrants, most signatories never had the ability to affirmatively sign this contract. Those with the least favorable terms generally cannot afford to get out.

Head In The Sand

So far, we have a made-up concept which purportedly justifies binding free men and women to a bunch of rules with no moral authority and imperfect rationale. Where does that leave us? Can I possibly send people to prison on such flimsy grounds? At a fundamental level, this is a binary question. Either the state cannot ever interfere with private actions, or it has to find some grounds (albeit illusory) to do so. And I choose the latter becuase the consequences of the former are inconceivable.

The remaining question is one of degree. If states can interfere with people's lives based on artificial constructs, how far can they go? I am not ready to answer that question fully, but surely, states must retain the power to enforce their rules and punish the offenders. That is the very definition of "power to interfere."

How do I sleep at night?

I am an ADA. A faithful servant of the People and an instrument of Justice capable of surgical precision. I'm the guy who keeps bad people away from you, the law-abiding model citizens. I could have been a millionaire had I used my license differently but here I am, working hard for you on a meager salary. So yes, I am more than a little bit disturbed when some of you question my career choice. My friend Billy (a privileged cokehead turned still-privileged prison rights advocate) regularly asks me how I sleep at night after condemning people to hell on earth. On whose authority do I get to inflict such pain?

Absolute morality

My job would be a lot easier if actions had inherent and indelible moral characters. Unfortunately, this is not the case. Most of us are endowed with a moral compass, but yours and mine often point in different directions. One man's freedom fighter is another man's terrorist, right? I do not pass a moral judgment when I seek to convict someone. Granted, I sometimes have to act as if the defendant is an evil person guilty of undoubtedly evil deeds, but I would be downright delusional to believe that he/she has actually violated a higher law which transcends the limits of human relativism. That was medieval times. This is now. The defendant is going to jail because he/she broke our rules.

Social Contract

Natural State v. Illusory Human Construct

Conclusion

-- PeterPark - 26 Feb 2010