Counterpoint: Prosecutors represent society, not criminals

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Having heard it for decades, who isn't familiar with the iconic opening of the television show "Law and Order": "In the criminal justice system, the people are represented by two separate, yet equally important groups: the police who investigate crime, and the district attorneys who prosecute the offenders"?

Yet, after reading the recent apologia for the policies of Hennepin County Attorney Mary Moriarty ("Moriarty's vision, not critics' fears, have been fulfilled," Oct. 25) it is clear some basic principles of the American adversary system of law need to be reviewed.

"Representing the people" is an accurate description of the job of prosecutors, whether called district attorneys, county attorneys, state's attorneys or some other title. That is why criminal cases are titled "State vs.," or "People vs.," or "State of Minnesota vs." Prosecutors represent victims of crime, law-abiding citizens, and ordered society at large.

This is consistent with the American adversary system, which provides for two opposing sides in every case. In criminal cases, society is represented by the prosecutor. The criminal defendant is represented by a defense attorney. Legal ethics direct each attorney to represent their client zealously. From the conflict, it is hoped truth and justice will emerge.

This American adversary system is not working in criminal cases in many districts today.

A nationwide movement, especially in larger cities, has seen prosecutors elected or appointed who are seemingly not interested in representing the interests of society. Instead, they are focused on the criminal wrongdoer. What can be done to rehabilitate? What can be done so the accused does not have to remain in jail until convicted? What can be done to return the offender to society as soon as possible?

All of this is a perversion of the American adversary system. It is also a complete perversion of basic criminal law.

Rudimentary criminal law, taught in schools across the country, identifies four primary purposes, in no particular order, that underlie the law's response to a criminal defendant:

Let's start with possible rehabilitation of the criminal defendant. Yes, that is a laudatory purpose. We all benefit from returning a productive, law-abiding person to society. A prosecutor should keep this possibility in mind. Probation instead of prison may serve rehabilitation in proper cases.

Next is punishment. Release prior to trial is not punishment. Neither is probation. Punishment primarily means jail time. Society has an interest in seeking a measure of revenge or restitution against a person who wrongs it.

Imprisonment also serves the interest of deterrence. When a potential wrongdoer is aware that a buddy is locked up for bad conduct, the results are second thoughts before committing a similar crime.

And of course, the interest of society in protecting itself from criminal activity is supported by separation, or incapacitating the criminal from being able to do it again. An offender in jail cannot commit more crimes against the public. Few articles in the local newspaper are more aggravating than a story about a murder, armed robbery or assault committed by a serial criminal offender who should have been in jail for prior crimes, not on the street with the ability to offend again. The motto of a prosecutor should be "Fool me once, shame on me. Fool me twice, not gonna happen."

Three of the four purposes of criminal law — retribution, deterrence, incapacitation — require strong, even at times harsh, advocacy by the prosecutor to protect society. They do not point toward a prosecutor seemingly interested in returning an offender (rehabilitated or not) to society or solving societal problems through the criminal justice system.

I have known defense lawyers who chuckled over "getting a client off" of a criminal charge. Of course, that was their proper role. They were defense lawyers. Personally, I could never see myself in that role. So I have trouble understanding why a lawyer with an attitude favoring defense would seek to become a prosecutor. But today many jurisdictions, especially in large cities, have lawyers with defense attitudes serving as prosecutors.

A few of these prosecutor-lites have been removed from office by higher state authorities. Many more should be. In jurisdictions currently burdened with a top prosecutor seemingly more interested in being a defense attorney, we can only hope the voters will be savvy enough to say goodbye at the next election.

Douglas McFarland is professor of law emeritus at Mitchell Hamline School of Law in St. Paul.