November 2, 2017
Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General
Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text. I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:
The ideal prosecutor is dogged, but not an automaton who proceeds at all costs. Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.
Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.” Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”
With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940. Jackson’s point was simple. Violations of the law abound. “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.” As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.
The ability to choose which cases to prosecute is an extraordinary power. Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law. But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.” Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.
When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.” The only right answer is, “Because I should.”
Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation. Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:
The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”
Our Founders understood the necessity of protecting individual liberty from government overreach. And no clearer overreach exists than the power to take someone’s liberty without due process of law.
Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....
Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.
A defense attorney’s work is not just about the individual client represented in any given case. Rather, the work is an integral part of our constitutional system.
The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected. A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.