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The Ethics of Prosecutors

by r. michael cassidy

Prosecutors are leaders in our criminal justice system who wield a great deal of power to affect the day-to-day lives of our nation’s citizens. Yet members of the public often find it surprising that most discretionary decisions made by government attorneys in criminal cases—including when to initiate an investigation into a potential target, what criminal charges to bring, and when to offer leniency in exchange for a plea bargain—are almost completely unregulated as a matter of professional ethics. With the exception of a few isolated mandates in the text of ABA Model Rule 3.8 (“Special Responsibilities of a Prosecutor”), the legal profession has left much of a prosecutor’s day-to-day decisionmaking unconstrained, in favor of a catch-all admonition to “seek justice.”

What does it mean to “seek justice” if you are a public prosecutor? “Justice” is an example of a highly generalized axiom of behavior; it does not set forth permissible and impermissible conduct, and it does not set out criteria for how prosecutors are supposed to determine what is just. “Justice” might mean several overlapping but different things simultaneously; for example, it might mean safeguarding the substantive and procedural rights of the accused, exhibiting general “fairness” to others (including not only the defendant but also the victim and other witnesses), showing consistency in decisionmaking, or promoting public safety. This admonition does not provide prosecutors with any real guidance on how to act in particularly complex areas. Aristotle emphasized the sort of person we must become if we want to live a good life. Virtue is acquired through practice. Repetition of virtuous actions will lead to virtuous character (habit), which will in turn lead to more virtuous action. Values and principles alone cannot determine proper outcomes, because moral judgment is not just about arriving at appropriate answers—liking solving math equations. For a virtue ethicist, moral judgment is also about nurturing the appropriate attitudes and reactions to the situations in which individuals find themselves. It is thus critical to approach problems of professional ethics from a perspective that recognizes the importance of character. After many years working in the trenches as a prosecutor, and several years since studying and writing about lawyers engaged in that function, I have come to believe that the primary virtues the public has a right to expect of its prosecutors are fairness, courage, honesty, and prudence.

What are these virtues, and how might they shape the conduct of prosecutors confronted by difficult discretionary decisions?

Fairness. Aristotle thought that it was important for citizens to live in proper relations with their neighbors. Individuals must recognize each other’s existence and their right to co-exist. Justice occurs where there is reciprocity, that is, where individuals identify and respect each other’s concerns. Moral philosopher Bernard Williams has equated the Aristotelian notion of justice with “fairness.” Fairness prompts me to act for the sake of another’s well being, rather than just my own. An unjust person is one who is not affected by considerations of fairness and is indifferent to the interests of others.

Courage. Courage is the virtue that enables an individual to do what is good notwithstanding harm, danger, or risk to themselves. For Aristotle it was the mean between fear and false confidence. Courage is the ability to risk personal sacrifice or withstand pressure. It is also the willingness to forego short-term benefits in pursuit of longer range goals, that is, to strike a balance between the immediate demands of constituents and the longer term needs of society.

Honesty. Aristotle recognized the importance of being truthful in speech and action. It is important to be honest not only about oneself (that is, to be conscious of one’s own motivations, capabilities, and desires), but also to be honest about situations external to oneself. A person is honest if he is willing to accept circumstances for the way they are, rather than feeling the need to make them consistent with his own predispositions. That is, an honest person is comfortable with ambiguity and open to evidence that discredits his own ideas or world view.

Prudence. Aristotle recognized that in certain situations the moral virtues may appear to conflict (for example, courage may point in one direction and temperance in another). However, Aristotle believed that prudence, or “practical wisdom,” is the key to discerning a proper course of action in those circumstances. Aristotle treated practical wisdom as the cornerstone of all virtues. Practical wisdom is the ability to deliberate well—to recognize and perceive proper ends, and then to select those means that are likely to achieve such ends. To be a virtuous person requires sensitivity to the important features of specific situations, and not merely the capacity to apply or follow explicit rules. A lawyer who possesses the virtue of practical wisdom is reflective; he is able to appreciate and synthesize the multiplicity of concerns at stake in each decision.

These four virtues are not traits that can be “taught” in law school (although the conversation and the practice can certainly begin in law school, particularly in a clinical setting). They are also not behaviors that can be commanded by ethical rules. As the philosopher Gary Watson has aptly noted, “[o]ne of the main impetuses for the recent resurgence of interest in the ethics of virtue…is the sense that the enterprise of articulating principles of right has failed.”

Professional norms are hollow without reference to the moral aspirations and sensitivities of individual actors working within their framework. The key virtues I have identified might not lead a prosecutor to one right decision in every situation. They can, however, help prosecutors filter out the wrong reasons for acting. The joint talismans of fairness, courage, honesty, and prudence might serve as nautical beacons to direct prosecutors away from rocky and dangerous shoals in their practice of law. Moreover, a renewed focus on the virtues might promote a culture of thoughtful decisionmaking in the prosecutorial community, providing individual prosecutors with the intestinal fortitude necessary to resist institutional pressures to seek convictions at all costs. Without a development of the moral self, individual prosecutors will not be willing or able to discern any ethical content in the American Bar Association’s admonition to “seek justice.”

My focus on virtue leads me to three practical recommendations about professionalism within prosecutors’ offices.

First, chief prosecutors and hiring managers should seek to hire young attorneys who either possess or have the capacity to develop the virtues of fairness, courage, honesty, and prudence. This is not to say that other attributes are not important to success as a prosecutor, including, of course, intelligence, energy, and trial advocacy skills. But these latter attributes are often given inordinate weight in the hiring process, to the detriment of the virtues, which may be viewed as softer variables and thus more difficult to assess. Chief prosecutors should ask questions during the interview process that attempt to draw out a candidate’s character, or what philosopher Philippa Foot has called the “disposition of one’s heart.” They can do so by asking hypothetical questions that are designed to test whether honesty, fairness, and prudence are qualities likely to be compromised by the lawyer in the face of competing pressures.

My second recommendation is directed at individual prosecutors themselves, particularly at young prosecutors just beginning their careers. New prosecutors should be very careful about who they pick as role models in their offices. Aristotle recognized that to understand the nature of good judgment in political affairs we must identify those who have it, watch what they do, and listen to what they have to say. When confronting difficult decisions in the course of investigation or litigation of criminal cases, prosecutors should seek advice from the lawyers in the office whose judgment they respect and admire, not necessarily those who have the highest conviction rates or the greatest public stature.

My third recommendation is that managers in prosecutors offices should not place young and inexperienced attorneys in positions where they need to make broad and difficult discretionary decisions. Deliberation is not something that everyone does equally well. According to Aristotle, the young are particularly handicapped in exercising the virtue of prudence due to their lack of practical experience over time. Prosecutors’ offices should thus be scrupulous in their decisions of whom to promote and when to promote them. Conviction rates and the ability to “move” cases should not be the sole keys to advancement as a prosecutor. Promotion should be granted only after a lawyer has demonstrated a capacity for honesty, courage, fairness, and, above all, prudence. Senior managers can identify these prosecutors through the fruits of their labors, their demonstrated capacity in hard cases to exercise discerning judgment.

This analysis also leads me to one cautiously optimistic observation about the professional life of prosecutors. As elastic and amorphous as the “seek justice” obligation may seem, it can be a source of inspiration for prosecutors who take it seriously. Indeed, criminal prosecutions may be one crack or crevice where the fading ideal of the lawyer statesman can still survive in our society, where persons of integrity can fulfill professional roles without inviting conflict between personal ideals and third person demands of clients. To do so, however, they must be willing to interpret the “seek justice” mandate as more than a mere platitude. A renewed emphasis on virtue will be critical to imbuing this admonition with true ethical content.

Professor Cassidy teaches Criminal Law, Evidence, and Professional Responsibility. This essay is condensed from a longer article that will appear in an upcoming volume of the Notre Dame Law Review.