The decision in Connick v. Thompson discussed here at “No proof of “deliberate indifference” as prosecutorial bacon is saved by high court,” was hardly digested when news out of Denver, Colorado revealed that ahead of that U.S. Supreme Court Opinion, one county district attorney had already moved to slay indifference of another type, that of improving job performance by paying cash for felony convictions. See “DA Chambers offers bonuses for prosecutors who hit conviction targets.”
One of Pavlov's dogs, preserved at The Pavlov Museum, Ryazan, Russia
Apparently having never heard of conditioned behavioral reflex or of Pavlov’s dog, 18th Judicial District – District Attorney Carol Chambers claims it won’t encourage the outcome in any case. Yep, and that’s why sales managers don’t ‘spiff’ to reach sales targets and why Wall Street refuses to dole out bonuses to executives and why I rarely trade in sarcasm.
Prosecutors are servants of the law. It says so in Berger v. United States, 295 U.S. 78, 88 (1935). In Berger, the Court said, “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so.
“But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
And prosecutors are also sworn to do justice.
The road to hell’s good intentions.
"Dante And Virgil In Hell" (1850) by William-Adolphe Bouguereau.
So does paying bonuses to prosecutors for hitting felony conviction targets fall in line with Berger’s proscription against foul blows? Does it do justice? Is it possible to preserve good intentions; be an ethical prosecutor; and do justice while trolling for bonus cash for convictions?
Can the traps of prosecutorial misconduct be avoided? Let’s just say, “I don’t think so.” There aren’t enough good intentions to sufficiently pave over that road to hell.
Additional high profile less-than-stellar instances beyond Harry Connick Sr.’s D.A.’s Office can be found at John Farmer’s Op-ed at Prosecutors Gone Wild – NYTimes.com.
The politics of crime.
In “Let’s Get Free, a Hip-Hop Theory of Justice,“ ex-prosecutor turned George Washington University law professor Paul Butler was more diplomatic about how good intentions can go off track, writing that good intentions can “get derailed for three reasons: the adversarial system, law-and order culture, and the politics of crime.”
For even more analysis, also see “Can an Ethical Person be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform“ by Washington University Law School Professor Lawton P. Cummings at Cardozo Law Review [Vol. 31:6] but contrast that with Pennsylvania University Law School Professor Stephanos Bibas who sees nothing wrong with incentivizing pay for prosecutors even despite objections from others that it “might commodify and thus cheapen professional ethics and public interest” and despite his own concession that “contempt, disbarment, and suspension are vanishingly rare.” See Professor Bibas’ article, “Rewarding Prosecutors for Performance.”
So in the end, if you’re guided if not necessarily comforted as I am by the precept that “no good deed goes unpunished,” then you’ll find little solace in its inverse as “Most prosecutor misconduct goes unpunished, study finds.”
But then it may only be that Carol Chambers is merely recognizing what the Bard once said about those needing ” a spur to prick the sides” of intent since “vaulting ambition” takes you only so far. (1)
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(1) “I have no spur
To prick the sides of my intent, but only
Vaulting ambition, which o’erleaps itself,
And falls on th’other. . . .”
Macbeth Act 1, scene 7. 25–28
Thomas Jefferson stated…”the two enemies of the people are criminals and government, so let us secure down the second with the CONSTITUTION so
the second will NOT become the legalized version of the first.”
The local county courthouse becomes misconduct crime infested for going
along with fellow court personnel misconduct crime……
like a don’t ask/don’t tell of personnel misconduct crime…..
they are allowing a justice system where crime pays…..salaries increased
or promoted and 6 figure retirement yearly checks for going along….
when a case should have been dismissed…no…you huddle in the back
hallway to doctor-up the court record testimony …kept that crime incident
from exposure by keeping read-back in jury room….kept any questions jury
had in jury room away from open court……they allowed known false evidence
to be instructed to jury….judge kept a real private attorney from entering case…………they obstructed justice…set-up a jury trial for defendant to fail
and lose…………crime pays as long your public funded personnel.