At Reason, a former federal prosecutor turned defense lawyer tells all. Granted, it’s just one guy’s story, but it is his story whether you like it or not. As it happens, that one guy is my buddy, Ken White.

When I left the U.S. Attorney’s office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I’m a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

What follows is an explanation of the forces that framed his mindset, his perspective. Whether this is an overarching explanation for all prosecutors, or just how one came to be the prosecutor he was, and his epiphany that he was the prosecutor he didn’t want to be, I dunno. 

But what was odd about it was the reaction to Ken’s revelations. Rather than being understood as the influences that gave rise to, and eventually crushed, the prosecutor within him, it was taken as a rationalization for why prosecutors do the dirty.  That’s what you get for trying to explain things.

Having never been a prosecutor, I have no similar story. In a way, Ken is talking to me, telling me his experience, to supplement the gap in my own.

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it’s not enough: It doesn’t address the root causes of fearful culture and bad incentives.

I may not know what lurks in the hearts of prosecutors, but this was never my view.  I never hated prosecutors. I never assumed misconduct was rife because prosecutors were some twisted breed of human being.  Sure, there were individuals that I didn’t think well of, and instances of conduct with which I took issue, ranging from mild umbrage to outrage, but I never attributed it to that category of lawyer we call prosecutor.

The counterpoint to Ken’s reflection on how culture pushes the prosecutorial mindset to disregard and trivialize rights isn’t found in inspirational speeches about the Constitution, but in talks with guys who commit crimes.

A guy walks down the street, stressed about how he’s letting his family down by not earning enough money to provide things that his kids want but he can’t afford. His wife has breast cancer. Three of his co-workers were let go because business sucks. And some guy hits him on the head, pushes him to the ground and grabs his wallet.

Aside from criminal defense lawyers, there aren’t many of you who have talked to the guy who did the hitting and stealing. There is nothing noble about their story. They’re not necessarily cartoon character villains, their every act and thought evil, but they aren’t Jean Valjean either. All things considered, they were better off than the guy whose head they hit, whose wallet they stole. They’ve got no excuse. It was just for a quick buck. Maybe for a fix. Maybe for sneakers. Maybe because it’s easier than working for a living.

This is where naive people ask, “how can you defend such a guy?” That’s not a question we ask, as has been explained ad nauseam, because the system only works when the bad dude is defended the same as the not so bad dude, or the occasional good dude. It’s easier to justify when we cherry pick the innocent defendant, or the overcharged defendant, or the defendant prosecuted for some malum prohibitum crap, but the reality is that of the cases prosecuted, most are just banal malum in se crime that hurts people who have done nothing to deserve the misery it causes them.*

The defense side gets to wrap itself in the Constitution.  Sometimes, we offer empty platitudes about how no one is as bad as their worst act.  We’re supposed to go through life without committing that “worst act,” when it means violently harming another. We don’t get a prize for not doing harm to others every waking second.

And when we do harm, there are consequences, both for the person we do it to and ourselves. That’s the way it’s supposed to be. There is a huge gap between those who think every wrong deserves life plus cancer, as opposed to pretending that hitting someone over the head is no big deal. It’s a very big deal to the guy whose head got hit.

On the prosecution side, Justice Robert Jackson expressed the prosecutorial aspiration.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

So they don’t always live up to these ideals? Who among us does?  Ken is right, that the culture could be far better to encourage prosecutors to honor the Constitution, to show greater humility given the vast power we hand over to children, given the societal lust for revenge.

But the problem is one of excess, not existence. We need prosecutors because we have people living among us who do bad things to other people, and while many of the arguments made about how to deter crime are nonsensical, because criminals neither know nor care despite whatever theories float inside your head, they do know there is this vague thing called court, that leads to this really unpleasant thing called prison.

And the person who tries to move them from one place to the other is called a prosecutor. Those of us who have either been hit over the head or don’t want to be need there to be prosecutors.  Now, we just need to get them to be better, more honorable prosecutors.  And to rid their ranks of those who are as bad as our clients, who do their harm with indictments instead of guns.

*Do criminal defense long enough and you hear every excuse imaginable. There are some perpetual favorites, like “it’s not like I killed anyone,” to which you respond, “and that’s why they are only asking for ten years rather than the death penalty.” But my all-time favorite isn’t an excuse at all, but the guy who, after being told of the charges, looks at you, a shy smile on his face, and shrugs, as in, “they got me.”