At Judex, we love to share the work of other writers. If you are interested in submitting a guest column, please contact me. This guest column is by Chris Lane, Floyd County Indiana Prosecutor.
Prosecutorial Restraint for the Greater Good
Today, more than ever in American Life, we are seeing more attention on Prosecutors across the Nation. In New York City, a DA has charged a former President. In Jurisdictions across the Country, Prosecutors are refusing to enforce certain laws creating a crisis concerning the balance of power between elected legislatures and Prosecutors. It is a reminder of the tremendous power a Prosecutor has to serve and protect the people but also use their powers to promote their own personal beliefs.
The Prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Jackson, Robert, “The Federal Prosecutor”, 1940.
Robert Jackson spoke those words of Prosecutorial Restraint in his address to the United States Attorneys in 1940. Mr. Jackson was the Attorney General of the United States when he spoke these words. He had an illustrious legal career including serving as a United States Supreme Court Justice and the lead United States Prosecutor at the Nuremburg Trials of Nazi War Criminals.
As we see prominent prosecutors around the country, refusing to enforce certain laws passed by elected State Bodies or possibly prosecuting former Presidents, it is important to analyze the role of a prosecutor. A Prosecutor represents the People of a State or Nation. What is important to remember is that they do not represent some of the people but all of the people; they must protect the rights of all the people, including the victims and Defendant. It is a vital role but Mr. Jackson in his address, which I have attached to this article, gives a wise roadmap for all Prosecutors.
Mr. Jackson opens his address by stating the power of the Prosecutor: the Power to investigate, order arrests and present cases to a Grand Jury in secret session, and dismiss cases before trial. If the Prosecutor takes the case to public trial and gains a conviction, they can recommend a term of imprisonment. They also have the power to decline to prosecute cases or a whole area of law thus leaving a class of victims with little recourse for protection.
The questions then becomes why invest this much power in one person:
These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done -wanted crime eliminated -but also wanted the best in our American traditions preserved. Jackson, Robert, “The Federal Prosecutor”, 1940.
The People have invested a Prosecutor with the belief that the right thing be done which is that crime is eliminated. The People through their elected representatives define crime and the Prosecutor must resist the urge to selectively apply the laws that the Prosecutor approves and ignore the laws they do not.
The Prosecutor also must avoid trading her day-to-day good name for fair dealing to build up success. The Prosecutor becomes the face of justice and if they choose a path of self-importance to pursue rewards in the future, they have failed, as the People will lose faith in the criminal justice system. “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should, rather than pick cases that need to be prosecuted.” Jackson, Robert, “The Federal Prosecutor”, 1940.
The Prosecutor should not pick high profile cases in an effort to gain fame but ignore the day-to-day crime that a marginalized community faces all in an effort to appear benevolent or wise. The Prosecutor must aspire to work day to day to serve the People by enforcing the law and eliminating crime. Exercising power requires voluntary restraint for the greater good.
Click this link to read Jackson’s remarks: The Federal Prosecutor - Robert H Jackson Center
Chis Lane is the Floyd County Indiana Prosecutor