Cash for convictions
Apparently, District Attorney Carol Chambers is offering cash incentives to prosecutors in her office for getting convictions in their cases. The obvious ethical implications involved have been covered already by Mark Bennett and Scott Greenfield - Mark puts it into plain language for us:
Offering prosecutors more money to get more convictions gives them an incentive to make unreasonably high offers on the easy cases that should be pled, and to make unreasonably low offers on the tough cases that should be tried. There is nothing okay about that.
Another element to this story that's missing is that Chambers knew when she put this policy in place that she would get nationwide press coverage - and she was not shy about speaking to the Denver Post to give them plenty of quotes for their article. I can't believe that any prosecutor would actually believe that such a plan is ethical, but - Chambers is an elected official who needs votes to stay in office, and any press is good press, right?
Back to the ethics of cash for convictions - the duty of every prosecutor is to seek justice and not convictions, and any program offering incentives to achieve convictions subverts this duty and creates fertile ground for some prosecutors to cheat in order to obtain recognition. If you don't believe me, listen to the National Center for Prosecution Ethics, which has a webpage listing quotes about prosecutors and the prosecution function:
National Rules and Standards
American Bar Association Model Rules of Professional Conduct3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”American Bar Association Standards for Criminal Justice
3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.National District Attorneys Association Prosecution Standards
1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.
Or listen to the United States Supreme Court in Berger v. U.S.:
" The United States Attorney 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 nor 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."
But, you say, what about defense lawyers? Aren't they also bound to seek justice and not acquittals? No. Although justice is what we all want to achieve in the courtroom, the job of a defense lawyer is to do everything ethically possible to defend his or her client and achieve an acquittal. Again, from the United States Supreme Court, this time Justice White's concurrence in U.S. v. Wade:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. [Footnote 2/5] To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. [Footnote 2/6] Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, [Footnote 2/7] but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.
Despite this difference in the functions of defense lawyer and prosecutor - I wonder, if a public defender's office were offering cash incentives for cases taken to trial and acquittals achieved, what kind of outcry would we hear?
