While it’s rarely mentioned in the lawbooks, underneath the harsh talk of law and punishment is an expectation that prosecutors, in whose hands monumental power resides, will exercise sound discretion.  That means, of course, that they would know sound discretion if it bit them in the butt.

At Popehat, former federal prosecutor Ken writes about the good times as a kid playing with a loaded gun:

So when I got them a search warrant for the ranch of one of the lead targets of the investigation, they were thrilled with me. “Ken,” they say, “we’ve arranged air support for this operation. So we want to have you picked up on top of one of the buildings downtown in one of the Sheriff’s helicopters, give you a raid jacket, and have you come along on the search to run a command center on the ground and trouble-shoot any legal issues with the search.”

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

Come on, what kid wouldn’t think that’s the coolest thing ever?   But even then, Ken knew something might be awry.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

It’s a very good rule, but what it reminds is that not every young prosecutor has the good judgment to ask for a wiser view.  Then again, not every prosecutor who asks will get a wiser view.  Worse still, the need for a wiser view, the sound discretion we expect every prosecutor to possess, doesn’t arise with every decision a young prosecutor makes.  There are many decisions to be made, in many cases, all the time, and they can’t run to the boss every 12 second.  They are expected to make their own decisions. That’s why they’re paid the big bucks.

So what decisions affecting the lives of others would you like to put into the hands of your typical 26 year old?  Would you have them decide whether the father of some sweet children will be there to feed them?  What about the decision of how to make decisions in running a major multinational corporation?  Certainly, most 26 year olds who have never held a non-law job would know better than CEOs how corporate decisions should be made, right?

Ken’s story reminds us of how fragile this system really is, despite the bluster of righteousness that covers up all the ugly warts.  It depends on so many factors all working properly, including the exercise of sound discretion by prosecutors who get giddy at the prospect of playing Elliot Ness.  It’s not sufficient to say that a chain is only as strong as its weakest link, because so many of the links are weak, some barely exist at all. 

Historically, the tempering force to the worldview of youthful prosecutors was the judges, who were expected to use their experience and maturity to guide their executive branch cousins back toward the path of lenity and reasonableness.  That hasn’t always worked well, however, as federal judges were almost exclusively drawn from the ranks of prosecutor’s offices and Biglaw towers, where there was little concern for the way children wielded their weapons.

This was exacerbated by the shifting of power away from judges into the hands of those very same baby prosecutors, whose charging authority coupled with mandatory minimum sentences, and for a time when the sentencing guidelines turned federal judges into junior accountants, made them near omnipotent.  Between the agents they adored, and their belief (or at least acquiescence) that whoever a g-man said was a criminal was, without question, a criminal, and their Ivy League sense of propriety, they could do no wrong.  Even as they drank themselves into oblivion after work, or smoked a bit of reefer with their officemates while pretending it was different than the black kid they sentenced before lunch that day.

If it was just old guys like me who told stories about children with guns being left in charge of our legal system, it could be easily dismissed as the rantings of the other side, sour grapes, maybe even a conspiracy theory in play.  But when former federal prosecutors remind us that they were children once, and given the power to destroy lives, the point is far better made.

Ken was fortunate to serve under a United States Attorneys who both understood something about the job and something about youth.  Not every assistant is so fortunate.  Not every defendant is so fortunate either.