Short Take: The Problem With Justice

One of the most intriguing headlines ever launches Mark Osler‘s commentary at the Messiah who shall not be named:

The Problem with the
Justice Department

It’s a building full of prosecutors.

Come on. You’ve got to love that. But why is that a problem?

Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.

People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.

Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.

Whether “people” would be outraged is somewhat debatable, depending on how you defined people, but it’s a fascinating point. Yes, the nice folks at Main Justice are all prosecutors. Even the ones beloved by progressives because of their conflicts with Trump, Sally Yates, Preet Bharara, even Vanita Gupta, are still prosecutors. Had the groundlings given them much thought pre-Trump, they would have been dreaded.

Why? Because these prosecutors are part of the machine that fought reform, failed to stop bad cops from violating our constitutional rights and empowered them to kill black men in the streets, kept our prisons full and did all the harm they hate so passionately. Because they’re prosecutors.

This defining characteristic matters, because a building full of prosecutors will instinctively push back against reforms that could make criminal law fairer, less retributive, and more productive. That may be most obvious when a president is hostile to criminal justice reforms, but it is also true when a president is progressive.

Here’s the problem: the Department of Justice is an agency of prosecutors, which, in a theoretically perfect world, would exist to “do justice” rather than lock away as many people as possible for as long as possible. Justice Robert Jackson spelled it out beautifully, but warm prose is a long way from practice in the trenches.

The DoJ gets to do what it does because that’s the federal agency charged with the job. Formed on July 1, 1870*, a mere 146 years ago, its motto (because everybody needs a motto) is “Qui Pro Domina Justitia Sequitur,” Latin for “Who prosecutes on behalf of justice (or the Lady Justice).” See? It says “prosecutes” right there. 

Perhaps the problem isn’t, as Osler asserts, that the DoJ is full of prosecutors, as that was always the purpose, but that the role of prosecutor has shifted from serving the public to locking the public up and defending the government against the public. Some will see this as the very public service for which it was formed. Others will disagree.

Certainly, there has to be someone to manage the prosecution of the tens of thousands of federal offenses that exist, and grow, with each sad tear of a wrong that demands recourse. And the DoJ has different divisions serving different purposes, so that they’re not all in court demanding life plus cancer.

But as Osler shows through examples, it didn’t serve to change much under a pseudo-reform-minded president, and certainly isn’t going to help under the current regime. If the only voice the president hears is that of the Prosecutor-in-Chief, then maybe it’s time for a Defender General with no prosecutorial duties or conflicts. It wouldn’t hurt.

*The position of Attorney General was established by the Judiciary Act of 1789, a part-time, one man show.

5 thoughts on “Short Take: The Problem With Justice

  1. B. McLeod

    Well, there is Department of Justice, Tax Division, which technically “defends” refund cases (because in our tax system, taxpayers have to assume the posture of plaintiffs in every non-criminal venue).

  2. joe

    When I saw your article I thought people who had no idea might be motivated to change our flawed justice system. Instead news like this is met with a collective yawn by our mass media and the public is concerned with a comedian and a bloody head.

    The war on drugs has changed our justice system for the worse.

    DA’s become judges and work for the DOJ and then become Supreme Court judges, what could possibly go wrong?

    It’s been my contention that our government would collapse if our bloated justice system was closed and a new one rose in its place. State and Federal government services would probably crash if we closed our courts, suspended policing and freed millions of people, incarcerated in the failed war on drugs.

    A justice system founded on civil rights, not fines, bail and private prisons what a concept. It certainly won’t happen in our lifetime, there’s too much money to be made.

    1. SHG Post author

      Much as I hate to throw a wet blanket on things, there are some bad dudes out there. Never forget that they exist and would slit your throat without blinking.

  3. Billy Bob

    There’s just not One problem with the Justice Dept. There’s a whole host of problems, which we’re not going to get into at a time like this. It’s late, and I’m missing my date.
    A Justice Dept. full of pro-se-cutors is like a hen-house full of hens. Each of them is fighting for a nest to lay their egg in. And after the beautiful egg is laid, they have to go around cackling and crowing till the cows come home. Hey look, I just laid an egg! So what, who cares if you laid a bloody egg by picking low-hanging fruit. I know, mixed metaphor,… too bad.

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