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Paper Title

-- By CeciliaWang - 22 Feb 2010

The Question that Sparked this Paper

An interviewer posed to me this hypothetical: "How will you handle your work in a case you believe is wrongfully prosecuted? For example, a domestic violence victim who struck back at her abuser." I cannot recall my answer as well as the question, though I remember declaring my faith in the integrity of my assistant district attorneys, in the high standard of evidence and persuasion held by the criminal justice system, and the right of all to representation, knowing that the interviewer herself as good as admitted that sometimes they try to make felons and prisoners of people who do not deserve to be treated so harshly. A more likely, and less sympathetic, hypothetical would describe a kid charged with a litany of offenses amounting to years in prison for relatively minor incident.

The Superhero Ideal

As a kid, I did not get to watch a much American superhero cartoons as I might have liked because of Chinese school on Saturday mornings, but I did love the superheroes enough for the idea that the world is made up of heroes and villains to stick. The world of superheroes the evidence is always convincing and heroes never have to struggle to convict against a high standard of proof or have to defend their evidence gathering methods and warn villains against self-crimination. The confessions they obtain are always admissible, and in the superhero world we in Southern California would not have been bewildered by the acquittal of O.J. Simpson. The "villain escapes" mode of injustice, in comparison, is far more prevalent in real life. Newspapers probably publish as many stories about successful convictions as about bewildering acquittals or prosecutorial laziness.

Are you honestly suggesting that every acquittal or successful appeal is an instance of injustice? If that's not what you're suggesting, what did these two sentences mean?

I believe that is because most citizens (the comfortable, middle class ones with political clout, I should specify) trust and rely on, because we want to and need to, our criminal justice system, so when a murderer is put away, a heinous criminal punished and victims vindicated we take the result for granted as the due course of nature.

I believe in justice, but I don't think everyone convicted of murder is remotely guilty, and I don't think any conviction "vindicates" a victim. So could we go a little more closely over those steps?

Blame Politics?

Fear is justified.

I can understand why we give law enforcement officials, and prosecutors especially, so much discretion and power. Few are those who have not suffered an unpunished crime or fear of law enforcement's failure to capture neighborhood criminals. My family's car windows have been smashed while parked during daylight hours in downtown Santa Monica. I know of students who have been mugged and worse by standard-description teenagers who have never been charged for those particular crimes, and I know of a group of youths who were caught but released because the victim just did not want to deal with the process and the fear of retaliation. Minor crimes, sure. Even when objectively we are relatively safe it is easy to feel afraid; all it takes is one news account of a serial rapist or a brutal beating for voters in search of security to vote for the tough on crime politician who will enact some Three Strikes Law equivalent.

You are writing about life in a city that is as safe as it has been in two generations, and is beginning to approach the absolutely atypical period of public order from 1935 to 1960, which was the most remarkably relatively crimeless period in the city's entire history. Yet you are writing with the sort of concentrated relentless about the idea of the existence of crime that would have seemed familiar to beleaguered Manhattanites in 1991. Crime rates have been falling for a generation, and despite the current hard economic times, which should be generating a great deal of additional public disorder given historical models, we are living in great civic tranquility. Some windows have been broken in Santa Monica, and some aggressive and disturbed teenagers (whom we used to call juvenile delinquents) have stolen someone's wallet? No, fear is not justified. A good subject for an essay might be the exploration of the causes of your fear.

The solution to fear.

Citizens can be protected by a strong, visible and alert police force; by a healthy social, educational and economic structure; or by locking away all the dangerous elements.

Surely you've some awareness of the sound of this talk of locking away dangerous elements? So we've got two million people in jail, which is a higher proportion of our population than any civilized nation on earth, and there are more young black men in prison in the United States than there are in college, and you think we're just locking up "dangerous elements"? Nor do either you or I see any sign that the size of the dangerous element has been in any way reduced, even though we are already imprisoning millions of people and are spending trillions of dollars every generation on prison construction and operation. So perhaps you can tell me just what evidence you have to support the very dubious statement above?

The last is the easiest, so that is what has been done. Sentences increased for crimes that are easily proved and likely linked to other crimes (such as drug laws), and legislatures have broadened the reach of criminal statutes.

With what positive result?

Law students becoming law enforcers, integrity and sense of justice

Many will face the same pressures of competition and prestige

Success as defined in the law school can be dangerous when carried past graduation. Law school encourages pursuit of status symbols. What drives law students towards the pursuit of the best law firms, what drives them towards the pursuit of the most prestigious U.S. and district attorney offices to practice in, will push lawyers towards the pursuit of whatever status symbols prosecutors have among themselves: highest conviction rates, the highest sentences; the most publicized and challenging cases. I was shocked to see how brief are the descriptions of crimes in the New York Penal Law. The vagueness of statutes allows for creative, expansive application. An ambitious lawyer can do so much injustice, by choosing to charge a felony instead of a misdemeanor, by plea bargaining a weak case, as the result of overzealous exercise of decent, law-abiding citizens' right to security.

How do we discuss prosecutorial discretion until we clean up the harm done by implying that every acquittal is an injustice?

"Those young ADAs, they think they are God"

An attorney at the Legal Aid Society made that accusation when he introduced interns to the organization's work. I think his point was that even for their clients who both did and intended the acts for which they stood trial, those seemingly indefensible clients, the Society's lawyer's still had to protect even those clients from overzealous prosecution.

It's not an accusation. It's an observation. I know exactly what he means.

The problem more likely lies in that most young ADAs know they are not God, not in their personal and professional lives, yet they still have tremendous power over a certain class of potential defendants, easily abused. Law school is a disempowering experience, or maybe just first year, with severely limited freedom of choice and anonymized individuals, set towards one competitive goal like racing dogs. At the same time, because of the impossibility of specialization at this level of learning, I find myself easily replaceable. Even work for voluntary pro bono projects showcase how useless a first year student is; the work usually involves helping someone fill out government forms and presenting an obvious case against an absent adversary. It must be exhilarating to be a first-year attorney with the power to charge and prosecute and to win. Simply win.

What to do?

Prosecutors are already supervised; they are in many ways constrained. What to do about this freedom they in the exercise of their power over the indigent, over people who for various reasons walked into the criminal justice web? Unlike superheroes, the Harvey Dents of real life are prone to mistake, prone to malice, prone to ignorantly causing injustice while in the pursuit of apparent professional success. It is a power only they can control and refrain from abusing.

This "power to charge and prosecute and to win" is the power to damage or destroy many innocent lives in pursuit of the "guilty." Many of the young people who decide that they want this power tend to conceal from themselves, as one might expect them to do, what it really is. They tend to behave as though at the moment of the crime the universe shrinks until it contains only the state, the criminal and the victim. Then they set themselves to making sure that the accounts balance out in this absurdly misshapen little universe, often without the slightest empathic awareness of all the others whom they injure in the process. The offender's family, for example, are merely people he should have taken better care of, no part of "the People" on behalf of whom the prosecutor is doing her job. And so on.

It is this self-righteous refusal to understand the presence of others who must be cared for, and the obscene simplicity of the idiotic belief in the value of punishment, that the Legal Aid lawyer was remarking. It's the occupational hazard of young prosecutors. After a while, most of them lose their lust for judgment. A few become judges. The rest have a chance to become valuable public servants, or else they become something far more dangerous to the public good.

But what about the question that sparked the essay? You never do go back to give the right answer; it seems to me that to address the question and give the professionally appropriate answer is probably the most useful thing you could have done in order to edit scrupulously this present draft.