“I’m A Prosecutor. This Is What We Do.”

Jeff Gamso tells the story of Herman Wallace, whose full name these days is “Herman Wallace, one of the Angola 3.” Gamso’s article is appropriately titled “The Fear of Too Much Compassion,” But it could just as easily been titled “I’m a prosecutor. This is what we do.”

Those are the words of ironic self-indictment from the following quote in Gamso’s blog post:

When asked whether D’Aquilla considered the value of expending resources on a case that likely would never see Wallace’s return to jail, D’Aquilla said he had.

“I actually determined that he was sentenced to life and he didn’t fulfill his sentence,” he said. “It’s not fair to have him not in jail. His medical condition or something like that didn’t nullify the actions that he did.”

He added, “I’m a prosecutor. This is what we do.”

A prosecutor does not consider the expenditure of resources. A prosecutor does not do a cost/benefit analysis. A prosecutor does not consider whether nearly-completely killing a man, after leaving him in solitary confinement for 41 years, is enough. Prosecutors are like Energizer Bunnies: one goal. One mindless goal. To keep going. To never give up. The heart of their targets may give out, and may stop, but the Energizer Bunny Prosecutors just get more and more batteries. 

Why are America’s prisons so full? It’s not just the profiteering. I mean, yes, imprisoning people today is Big Business. Once the United States had abolished straightforward slavery, some substitute had to be found to continue to allow powerful white men to continue to exploit others. Owning a corporation is profitable, but owning a corporation that owns people has always been even more so.

Yet, as I said, it’s not just the profiteering.

Once prosecutors of the United States governments — federal, state, and municipal — at least seemed to follow the dictates of their jobs. Many, if not most of them, actually believed in making the world a better place. And if they didn’t always succeed at this, at least that was their goal. “Back in the day,” I’m told, you could actually find prosecutors who honored the Criminal Justice Standards for the Function of the Prosecutor spelled out by the American Bar Association.

Standard 3- 1.2 The Function of the Prosecutor

(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.

(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.

(c) The duty of the prosecutor is to seek justice, not merely to convict.

(d) It is an important function of the prosecutor 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.

Today, the American Bar Association is largely a joke — one reason I did not renew my membership beyond my first year with them — and prosecutors do not even read, let alone honor, the Standards. “Sound discretion” has no place in the prosecutorial lexicon. And the only “inadequacies or injustices” they see are those that involve releasing prisoners two days before they die, instead of forcing you and me to pay a little more for those prisoners to die in a prison.

Why? “I’m a prosecutor. This is what we do.”

This, in the eyes of the modern prosecutor, is what it means to “seek justice.” Where someone like me might see that “not merely to convict” follows, and thereby attaches to, the words “not merely to convict,” and read that as saying that the duty to seek justice supersedes the goal of attaining a conviction, today’s prosecutors read “not merely” as saying, “you must not stop at conviction.”

“I’m a prosecutor. This is what we do.”

A prosecutor sees a child — a 17-year-old child — steal a purse from another child who is in the middle of a fight with still another child. Instead of saying to herself, “These are children,” the prosecutor, smelling blood in the water even where there is no blood, sets her sights on the utter destruction of the child. No matter that the prosecutor’s function in a juvenile court goes beyond even “to seek justice.” No matter that it statutorily lays out that the juvenile system is not an adversarial system, but one in which all parties aim at rehabilitation. No matter that it is the child’s first encounter with the law. The child must be destroyed. Charged with a felony, and about to agree to enter a plea and participate in a rehabilitative program that could ultimately clear the child’s record, the Petition must be amended. The child’s childish behavior must be designated as a “strike,” allowing for a record which can never be sealed. Which will follow that child the rest of her life. Rather than rehabilitate the child, it will impair her ability to rehabilitate.

But, “I’m a prosecutor. This is what we do.”

A mid-twenties man — still a youngster, if not a child — comes to court with an addiction problem. Caught, not for the first time, with drug paraphernalia and — oh, crap! — in his drug-addled state of consciousness uttering a threatening word to those interfering with him as he enters his home to sleep it off, he must be “prosecuted to the fullest extent of the law.” And, of course, that means that he must be prosecuted until any hope of rehabilitation is annihilated; until he is utterly destroyed. If it were possible, he would go the way of “Herman Wallace, one of the Angola 3,” but without, the prosecutor hopes, enjoying two last days of freedom before he dies. Adding a strike for “criminal threats” will help ensure that he is ineligible for diversion. If the prosecutor is lucky, and this isn’t the first time ’round for the addict, there will already be a strike, a prison term, and the accompanying ineligibility for Proposition 36 drug rehabilitation.

Because “I’m a prosecutor. This is what we do.”

Surviving prison, but without any rehabilitation, or even the ability to break his addiction since those who profit off prisoners include drug-smuggling guards, the man returns to court. He is now perhaps in his mid-thirties. Perhaps he’s managed to elude the police longer, by keeping his head low and — since his criminal record ensures unemployment and even homelessness — constantly moving, and so he is mid-forties. No one, especially not the prosecutor, will recognize that his entire record is a product of addiction. He is, after all, well on his way to being “a career criminal.” His addiction, sad though it may be, is irrelevant: he commits crimes. (Nevermind even if 99% of those crimes are for possession, or use of, drugs.) The job of the prosecutor, in the prosecutor’s mind, is “not merely to convict,” but to go above and beyond, to ensure a longer prison term than the one that preceded it.

“After all,” the prosecutor will say, “I’m a prosecutor. This is what we do.”

He will continue to do what he does until the addict is dead, so long as the addict occasionally sees freedom.

And those are the good prosecutors. Let’s not even talk about the bad ones. 

We, the People — not “the People” as mouthed by prosecutors and judges in the show trials that make up 95% of courthouse trials these days, but we, the actual People — need to wake up. When prosecutors forget that “not merely to convict” is intended to be a brake on vengeance, a reminder that true justice requires looking at the bigger picture, to see how we can make the world a better place, it is not merely the convict who suffers. Our whole society is dragged down by this attitude.

God is alleged to have said, “Vengeance is mine.” Mere humans cannot adequately handle the power to wreak vengeance. That’s why the ABA Standards for the Function of the Prosecutor do not include a duty to seek vengeance. Things are bad enough in a system — as in the example from the juvenile case I mentioned above, which I will take to trial Monday — that statutorily requires the prosecution to work for rehabilitation, and explicitly states that the system is not adversarial. Prosecutors read that to mean that probation, the judge, the defense attorney, and not just the prosecutor, must cooperatively work toward the ruination of the lives of their targets.

How much worse are things in an adversarial system, which expressly seeks punishment, and not rehabilitation? Today’s prosecutor is all about that. Whereas the Bible said, “if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise,” a prosecutor will not consider the extent of the injury.

Why? Because, today, in the day of the modern prosecutor, prosecutors have lost their way. They can no longer read, without reading that the prosecutorial duty is to wreak vengeance, to destroy. “I’m a prosecutor. This is what we do.”

And the more people they blind, the more teeth they extract, the more hands and feet they cut off, the more accused they try to burn, the more wounded they wound, and the more bruised they bruise, the more we all suffer.

They are creating for us a permanent class of people who — when they aren’t in prison providing some of us with jobs and our corporate kings with profit — must necessarily continue to commit crimes merely to survive.

Ask them why, and they will tell you, “I’m a prosecutor. This is what we do.”


About Rick Horowitz

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

Comments

  1. A prosecutor the other day was posting from a training he was at, talking about how they’re the sheep dogs etc. Prosecutors have been taken over by the police. In Idaho, a prosecutor is actually a member of the judicial branch under the law and constitution, but you’d never know it. I always hear, “Well, I can’t do that, the officer that made the arrest would never allow it.” It’s disgusting. The Courts keep writing these misconduct opinions with the opening line that a prosecutor is to seek justice, etc., apparently not aware that prosecutors don’t even understand the concept. “Criminal justice” has placed the emphasis on the first word for so long now that the second has ceased to have any meaning.
    nidefatt´s last post ..“Well, I probably would have just kicked him the one time, but Detective Reid said, ‘Again.'”

  2. james vandyne says:

    Keep doing what you do Rick. I fear that it will only be a matter of time before they come for US and there is no one left to speak up.

Trackbacks

  1. […] Good comes from Jeff Gamso and Rick Horowitz, both of whom addressed how such a thing could have happened to Herman Wallace.  From […]

  2. […] Rick Horowitz and Jeff Gamso ripped the decision of Sam D’Aquilla, District Attorney of […]

  3. […] read an excellent blog post over the weekend by Rick Horowitz, “I’m a Prosecutor. This is What We Do,” that lays out a clear argument against the mindless, overzealous enforcement of the law by […]

  4. […] “I’m a prosecutor. This is what we do.” […]