Every prosecutor in America plays a dual role in our criminal justice system and the tensions between those two roles are inherent and inescapable. The prosecutor, of course, must zealously charge and prosecute and try to convict those she or he believes has committed a crime. But the prosecutor—every prosecutor in America, in fact—has a constitutional, legal, and ethical obligation that goes beyond merely trying to put people in prison. Every prosecutor has a broader obligation to ensure that the justice system is indeed fair and just in any given case.
Some prosecutors are able to perform both roles admirably. They aggressively charge and try defendants—or push for reasonably harsh plea deals, anyway—while still fulfilling their broader duties to the law (and to defendants). They are fair to victims of crime and defendants alike. These are the prosecutors who acknowledge wrongful convictions when they occur, the prosecutors who don’t hide material exculpatory evidence from defense attorneys, the prosecutors who don’t just see themselves as their community’s avengers.
But there also in America are, sadly but unsurprisingly, many prosecutors who barely try to fulfill their broader obligations to the justice systems in which they operate. These are the prosecutors who do nothing when they see incompetent defense work, or who hide evidence from defense attorneys, or who see every defendant as nothing more than the worst deed that person has done. Mass incarceration has come to America not just because of overbearing laws. It’s also come because of overzealous prosecutors.
During the eight years of the Obama administration, the Justice Department was led by two people who embodied the principles of the first type of prosecutor. Both Eric Holder and Loretta Lynch, lawyers with experience in U.S. attorney’s offices before they took over the DOJ, zealously prosecuted the cases they thought they could win and praised law enforcement whenever they reasonably could. But they also worked tirelessly to ensure a broader measure of justice for the millions of people caught up in our justice systems.
Both Holder and Lynch tried to improve the quality of indigent defense work, for example, tried to give more effect to the U.S. Supreme Court’s unfunded mandate in Gideon v. Wainwright, the case that gave all Americans the right to a lawyer without an adequate remedy for when that lawyer is incompetent, or drunk, or sleeping. Moreover, the Justice Department over the past few years in particular has tried to ease the impact of disparities in sentencing by processing clemency applications for President Obama. These were prosecutors who didn’t just want to win convictions.
It has not been perfect. One could reasonably argue, as many have, that the Obama Justice Department was not aggressive enough in going after white-collar criminals or, conversely, drug traffickers. One can certainly argue that the pace of clemency has not been what advocates and activists had hoped. And the Justice Department’s inability to fix the Bureau of Prisons is a disgraceful omission. But the failings of substantive policy are beside the point; no one reasonably can argue that the prosecutors in the Justice Department since 2009 haven’t at least tried to make the federal justice system fairer and more justice for those who normally do not have a voice in that system.
Now contrast that dynamic to what lies immediately ahead for the Justice Department under a Trump administration. As a potential successor to Lynch, Trump is said to be considering former New York mayor Rudy Giuliani, a successful prosecutor during his heyday decades ago and an increasingly shrill commentator since his own failed presidential run. Giuliani clearly has shown that he has the makeup to be the prosecutor-qua-avenger. But is there anything in his record to suggest he’ll care one wit about improving indigent defense or nurturing more sentencing reform as attorney general? Does anyone seriously think he’ll be mindful of his broader ethical obligations to make the federal justice system more fair to those who are not victims of crime?
The same can be said of New Jersey Governor Chris Christie, if he survives the George Washington Bridge scandal. Like Giuliani, Attorney General Chris Christie was a federal prosecutor and would be a loud and consistent tribune for law enforcement officials, federal prison officials who continue to abuse and mistreat inmates, and drug warriors who still believe despite all the evidence to the contrary that it is good policy to look up non-violent drug offenders for lengthy prison terms. But the broader obligations of the prosecutor, the ethical and moral obligations to lift up every component of the justice system, don’t figure to be part of his plans, either.
Now more than ever, the next Attorney General of the United States must be a prosecutor who is interested in more than conviction rates and harsh sentences, crime and punishment. Media attention toward police shootings aren’t going to fade. Neither is the movement to rid justice systems of the racial disparities that infect them. The costs of housing elderly inmates in federal prisons is only going to get worse. The next attorney general must be someone willing to build on the momentum that Holder and Lynch generated toward reforms that will make the law fairer to more people. Otherwise the slide back into federal mass incarceration will be unavoidable.
A few weeks ago, when a Hillary Clinton victory seemed likely, there was wistful talk of a Defender General of the United States, a person who could and would act as a counterbalance to the Attorney General. That dream is dead. What is left is a choice for the Trump team, one that will help define how serious he is about “unifying” the nation. He will either nominate an attorney general who will narrowly define justice or one who will see it in broader terms. In that choice rests the fate of countless Americans, in and out of confinement, in and out of our justice systems, who deserve an attorney general who speaks in turn for them as well.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.