Ministers of Justice

If I were a real lawyer (and not just a law professor), I would be a prosecutor. For one thing, prosecutors have the coolest title ever. According to the Model Rules of Professional Responsibility, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” “Minister of Justice.” How awesome is that?

When I teach law students about the unique role of the prosecutor, and even when I talk to prosecutors themselves, I often get pushback. Students question whether it’s possible for lawyers to step outside their role as adversaries. Prosecutors question whether they have the time and resources to exercise their discretion with the kind of measured moral judgment that the “minister of justice” title implies.

They’re right to be skeptical.  With a plea rate of 95-96%, prosecutors serve as judge and jury in most cases, deciding through plea agreements the crime of conviction and, in many cases, the sentence too. Despite the enormous power prosecutors wield, powerful incentives often drive them to take shortcuts, charging harshly and settling quickly even when guilt is not apparent. As legal scholars like Stephanos Bibas, Bill Stuntz, Daniel Medwed, and Ron Wright have detailed, there is often no investigation beyond the filing of the initial police report, and the volume of criminal cases, combined with overwhelmed and under-resourced trial judges, defense attorneys, and prosecutors, prevents robust adversarial testing in all but a tiny fraction of cases.

Despite that depressing backdrop, this week brought good news about the degree to which prosecutors are doing justice in the context of correcting injustice. According to a study recently released by the University of Michigan Law School, 2013 was a record year for exonerations. The National Registry of Exonerations added 87 new cases last year, bringing the total number of exonerations to 1,304 in a 24-year period. While at first blush, that seems like bad news for prosecutors—they got the wrong guys!—there’s a silver lining. According to the report,

[t]hirty-three known exonerations in 2013–-38% of the total-–were obtained at the initiative or with the cooperation of law enforcement. This is the second highest annual total of exonerations with law enforcement cooperation, down slightly from 2012 (39 cases, 49% of all exonerations in that year) but consistent with a pattern we described a year ago: police and prosecutors appear to be taking increasingly active roles in reinvestigating possible false convictions, and to be more responsive to claims of innocence from convicted defendants.

Under the ABA Criminal Justice Standards, prosecutors have a duty to “seek to reform and improve the administration of criminal justice.” “When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.” Despite that directive, the Innocence Movement has not always found friends among police and prosecutors. In a small number of cases, resistance has been a cover for prosecutorial misconduct, but in most it has been a result of the natural—though misguided—human tendency to ignore evidence that challenges us.

So what is driving the change in prosecutors’ willingness to re-examine closed cases? The best explanation, I think, is that the Innocence Movement has done a terrific job of using cases of wrongful conviction as teaching tools to educate the criminal justice community about the primary sources of error. Rather than point fingers (except in egregious cases of intentional misconduct), attorneys and clinical students involved in innocence litigation have worked to identify systemic problems, from the overuse of jailhouse informants to suggestive identification procedures, that can be improved by changes in law and policy. Not only has their work improved the quality of investigations and prosecutions, but it has made every actor in the system alert to the possibility of error, and consequently more attentive to cases in which known sources of error are present. As a result, today’s prosecutors are aware that even in cases where guilt seems clear, mistakes can be made.

The Innocence Movement deserves credit for its work, but so do the prosecutors themselves. Acknowledging that you (or one of your predecessors) have played a role in depriving an innocent person of his freedom is a bitter pill to swallow. The late Judy Schwaemle, one of my mentors and one of the best, most committed prosecutors I have had the good fortune to know, once shared with me her difficulty in coming to terms with a case of wrongful conviction. She said that even when confronted with DNA evidence proving she had prosecuted the wrong person, it was an intellectual and emotional struggle to acknowledge the defendant was not guilty. The truth was so painful that she tried to explain away the evidence in every way possible. I have to imagine that other prosecutors of goodwill also struggle mightily to come to grips with their fallibility and its consequences.

Given the courage and humility it takes to admit error in this way, I find the trend reflected in the Michigan report especially heartening. It appears that in the postconviction context, prosecutors are increasingly living up to their role as ministers of justice. That is news to celebrate, and a trend I hope will continue.