Prosecution & Liberty
The traditional view largely acts as though the defense’s role advocating on behalf of individual interests relieves the prosecution from having to do the same. With the defense almost always placing these individual interests first, prosecutors feel comfortable instead focusing on other societal concerns like public safety or victim restitution. Indeed, in our adversarial system, there even becomes an implicit assumption that if the defense is for something, then perhaps the natural course is for prosecutors to be against it. The unfortunate evolution of this idea being that individual and communal wellbeing appear to be conflicting goals and due process ends up looking like a hindrance that only frees guilty individuals rather than a critical safeguard for all people, including the innocent—a perspective all too frequently reinforced by popular culture. It is no accident that we call a procedural win by the defense “getting someone off on a technicality” rather than “the valid assertion of a constitutional right.”
This mindset can have negative repercussions for individual defendants and the wider community. When release or fewer conditions is portrayed purely as a “win” for the defense, convictions and sentence lengths begin to act as a kind of scoreboard. While this obviously does not benefit the defendant, prosecutors also risk wrongful convictions—which potentially leave a truly guilty individual loose in the community—or unnecessarily harsh and counterproductive sentences that similarly do not serve the community’s interests. At the same time, treating each case as something to be “won” or “lost” can blind prosecutors to broader trends occurring within the justice system. This, in turn, can allow problems like police misconduct to fester and the legitimacy of the system to suffer, once again working counter to prosecutors’ own interests.
Every prosecutor’s discretion provides a powerful tool to counteract these issues. Already, the ability to dismiss an unworthy case unilaterally or display leniency when warranted means that most prosecutors will be responsible in a few short years for the release of more individuals than even the most seasoned defense attorney. Yet, this still generally represents only a fraction of the cases in which they ought to leverage this discretion on the behalf of a potential defendant. A cultural shift is necessary in most prosecutors’ offices to elevate these kinds of outcomes alongside those involving justified convictions or necessary longer sentences. Likewise, prosecutors should fight the urge to turn simply to the next decision or case after a recommendation has been made; tracking whether a defendant actually posts bail or faces unintended collateral consequences will better align outcomes with prosecutorial intentions.
To these more nebulous moves, prosecutors should adopt policies that promote individual liberty without sacrificing other prosecutorial aims. This includes conviction integrity review of prior cases, which can identify any potentially wrongful convictions as well as other systemic flaws, such as laboratory analysis problems or mishandled evidence, that may only appear upon later and broader review of cases. Prosecutors can similarly prevent some of these issues through quick, transparent discovery practices like digital open discovery, which ensures that the defense has expeditious access to all of the evidence to which it is entitled. And, of course, prosecutors should support local public defenders in their perennial battles with state legislatures for additional resources. If prosecutors can rely on the defense bar to do their jobs competently, then there will be less need for prosecutors to double-check every move they make.
It may seem odd to paint a prosecutor as a champion of liberty. After all, their job requires them at times to deny a person their freedom. But that burden and the incredible discretion that comes with it places them in a unique position to be exactly that kind of force for limited government intervention. Improving due process or increasing the system’s respect for individual liberty are therefore not things that should be done against or over prosecutors’ wishes, but with those prosecutors serving as willing and able partners.