Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect

Abstract

Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice. With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes. While many prosecutors see this as a cheap and effective way to justly punish wrongdoers, this course of action has largely replaced our reliance on principles of justice such as the right to counsel, the right to trial by jury, and the role of an independent judiciary determining a punishment that fits the crime. By undermining basic principles of justice so crucial to our legal system, one might ask whether this way of handling criminal cases is antithetical to the prosecutor’s critical role as minister of justice.

This article argues that when a prosecutor charges more cases than he knows the system can justly resolve due to resource limitations, he violates his ethical obligation to seek justice. It further argues that many prosecutors fail to appreciate how they violate their duty to justice because of a culture that promotes this behavior. Finally, it suggests that prosecutors must be trained to resist these systemic pressures, and to act in accordance with values consistent with justice, if they are to fulfill their intended role in the criminal justice system.