Marquette Criminal Law Professor Michael O’Hear, who has recently come  under scrutiny here for the curious assertion that we need to make plea bargaining feel more like a trial so defendants can enjoy the “truth-finding” function of a court before they go to prison, has come up with a new theory.

He tells the story of how he’s invited 4 individuals who actually practice criminal law into his classes to talk to his students, and how one, a prosecutor, moved him.

I was struck by this prosecutor’s response to my standard lead-off question: “So, why did you become a prosecutor?” His reply, which must have surprised some of the students, emphasized his interest in working with poor people. He observed that, contrary to common perceptions, the population of victims with whom prosecutors work (at least in a large urban jurisdiction like his) is almost indistinguishable from the population of defendants with whom the public defenders work. He plainly views his job in social justice terms, as a way of providing services for some of the most desperately needy people in the community.

Hey, that’s what the man said.  And it would come as no surprise to me that he believes it.  I had a friend in law school who was as lefty as they come.  I’m talking painfully left, the type who would make you want to join the Federalist Society because she was so off the wall.  And, surprise, she went to work for the prosecution, setting off some gestalt bone in her head that allowed her to rationalize her paycheck with her politics in exactly the same way.

If we take a deeper look, maybe we can make some sense of this.  It is undoubtedly true that poor people are more likely to be the victims of street crime than anyone else.  Hence, to be party to the prosecution of street crime is to help the poor people who would otherwise be the victims of this crime.  So the underlying idea isn’t that far-fetched.

The problem is that the practice doesn’t necessarily match the theory.  The day to day work of a prosecutor is trying to put people in jail.  It is not to go out on the street, feeling the pain of the victims and helping them to get their lives back together.  It’s standing in a courtroom offering arguments as to why defendant after defendant should be punished.  In fact, rarely does a prosecutor have any reason to meet a victim, until it’s time to prep for trial.  And as we know, trials are few and far between.

The suggestion is also made that the prosecutor helps the poor by making more reasonable decisions as to prosecution and disposition of defendants.  In other words, a prosecutor can show leniency, proportionality and concern for a poor defendant by his choices, and a prosecutor who is concerned for the welfare of the poor can use the power of his office help defendants, or at least hurt them less than another prosecutor.

There is some truth to this, and all criminal defense lawyers know prosecutors who are more reasonable, and easier to deal with, than others.  When we get a decent prosecutor on a case, we appreciate the fact that our client stands a fighting chance, whether it be their handling of discovery, Brady, or disposition.  But in the continuum of prosecutors, decent people are still not “friends” of the defendant; They are more reasonable than prosecutors who want to put every defendant they meet to death. 

Moreover, prosecutors are not free agents.  They work in District Attorneys or United States Attorneys offices, with internal policies that dictate the limits of their authority.  There are constraints.  They do not have a free hand to cut defendants loose whenever it suits their personal fancy.  To suggest that prosecutors can apply their own vision of justice to their caseload is absurd.  They can do so, but only if they want to be unemployed a week later.

So, Professor O’Hear spins another yarn that simply bears little connection to reality.  This is not to say that prosecutors are bad, or that they do not perform a vital function in the legal system and society.  Indeed, they are a crucial player in an orderly society, and we all want to go to sleep at night believing that our homes will be safe from intruders and our children protected.  We want prosecutors (not to mention police) to do their jobs, for without them we would be at constant risk.  Praise be the hard-working, honest prosecutor.

And if every official in the criminal justice system performed his function properly, it would benefit all members of society, the poor included.  But that’s a long way from being the champion of the poor.  It is no more the prosecutors’ function to be the champion of the poor than it is to be the avenging angel of the rich. 

What is most telling about O’Hear’s post is his uncritical view of the prosecutor’s statement.  If the prosecutor says so, then it must be.  Hardly a scholarly analysis.  So here’s another take, Professor.  We each believe what we need to believe to do what we do everyday, pretending that we are doing the right thing for the right reasons.  If one guy wants to believe that he prosecutes for the benefit of the poor and downtrodden, and it allow him to sleep easier, so be it.  But saying so doesn’t make it true. 

Consider whether a lawprof should use their position with students to engage in the promotion of facile rationalizations when deciding where to start their career.  There is nothing wrong with being a prosecutor.  It is a necessary and important job.  But they should prosecute because they believe in the function, not because someone sold them the they will really be the hero of the poor, because they will find yourself living a lie and be very unhappy and disappointed in their choice.