Good morning, it's Friday, March 31, 2023, the last day of Women's History Month. Friday is the day of the week when I reprise quotations meant to be uplifting or educational. Today I have three of them, all dealing with prosecutorial excess.
Although she graduated near the top of her class at Stanford, Sandra Day O'Connor couldn't get even one of 40 San Francisco Bay Area law firms to so much as interview her for a job. She finally found an elected official -- a San Mateo County district attorney -- who would talk to her. (So, no, not all prosecutors are craven.) This DA didn't have an opening, so O'Connor volunteered to work for free, sitting not with the other assistant district attorneys, but with the office secretary until a paying job came open.
That was in 1952. Women in California hadn't progressed much since 1878 when a single mother in San Jose with five children persuaded the legislature to open the state bar to women. Clara Foltz, whom I wrote about a year ago, became a patron saint to indigent defendants and is credited for helping create the office of public defender.
"Let the criminal courts be reorganized upon a basis of exact, equal and free justice," she proclaimed in 1893. "Let our country be broad and generous enough to make the law a shield as well as a sword."whi
Doing so requires having prosecutors with a sense of duty to justice and without political agendas. But these are political jobs, with attendant partisan pressures, which is why unhealthy politics ripples out into society at large. Moreover, Congress and legislators, without really intending to do so, have rigged the system with sentencing laws and other mandates that not only disenfranchise defendants, but also judges.
In her 2019 book about mass incarceration, Emily Bazelon points the finger at prosecutors and their abuse of the plea-bargaining process. "We often think of prosecutors and defense lawyers as points of a triangle on the same plane, with the judge poised above them: equal contest, level playing field, neutral arbiter," she wrote. But it's not necessarily so. Brooklyn district attorney Eric Gonzalez explained the problem to her this way: "It's all about discretion. Do you authorize the arrest, request bail, argue to keep them in jail or let them out, go all out on the charges or take a plea bargain? Prosecutors decide, especially, who gets a second chance."
In a 1935 ruling, U.S. Supreme Court Justice George Sutherland admonished federal prosecutors to remember that they don't represent "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 added, while a prosecutor "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."
And those are our quotes of the week.
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon.
