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.
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)
(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