By Monroe Freedman
Legal Times
October 16, 1995
With the resurgence of the death penalty, an increasing number of prosecutors are facing a uniquely agonizing decision -- a decision of life or death. For it is the prosecutor who has discretion to opt for death in the first instance, and it is the prosecutor who must ultimately stand before the jury and use her professional skills to win the judgment that another person must be killed.
Some prosecutors have gone on record against the death penalty. In New York, where capital punishment has recently been brought back, Manhattan District Attorney Robert Morgenthau has spoken out strongly against it. In addition, Bronx District Attorney Robert Johnson has announced a general policy against seeking the death penalty, which has led to an unexpected response from Steven Krane, who is a member of Proskauer Rose Goetz & Mendelsohn. Acting in his individual capacity, but identifying himself as the chair of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, Krane wrote a letter to the New York Law Journal expressing the opinion that it is unethical for prosecutors to adopt a general policy against the death penalty.
Fallacies in Argument
Krane is wrong. His conclusion rests on two fallacies. His first fallacy is that prosecutors have "clients." His second fallacy is that the prosecutor owes a duty to those clients to enforce the laws "zealously."
Oddly, Krane begins by disclaiming the very notion that he then relies upon. He first acknowledges that "prosecutors do not have 'clients' in the traditional sense." That is certainly true. Although it is said that prosecutors "represent the sovereign," that is simply a metaphorical way of saying that the prosecutor has no client in the ordinary sense. What it means, most importantly, is that prosecutors exercise vast discretion -- in the words of Ethical Consideration 7-13 of the American Bar Association's Model Code of Professional Responsibility, "mak[ing] decisions normally made by an individual client." And just as an individual client has absolute discretion to forgo a right given by the law (EC 7-8), a prosecutor has the same discretion.
Nor can that discretion be coerced. As noted by the National District Attorneys Association: "Of the greatest importance to the functioning of the prosecutor is the ability to exercise the 'independent professional judgment' " required by ethical rules. Thus, prosecutors have the awesome responsibility to exercise their discretion independently, or, as Krane says pejoratively, "unilaterally."
But having acknowledged that prosecutors don't have clients, Krane then gives them some. The prosecutors' clients, according to Krane, are "all of the citizens of New York, if not also. . . the victims of crimes." What is the point of this exercise in doublespeak? Why is it important to say, contrary to fact, that prosecutors have clients?
The answer is that the fallacy of prosecutorial clients is necessary to advance to Krane's next fallacy_that prosecutors owe a duty of zealous representation to these asserted clients. He says that the prosecutors have a "duty to their 'clients' . .. to enforce zealously the laws." But it has long been recognized that "[t]he responsibility of a public prosecutor differs from that of the usual advocate."
As stated in a joint statement of the ABA and the Association of American Law Schools, the "partisan advocacy" required of private lawyers must be "severely curtailed" in prosecutors if their duties are to be carried out properly. Thus, prosecutors do not share the private lawyer's obligation of zeal. Moreover, even if they did, it would be a contradiction in terms to say that prosecutors are to exercise their discretion zealously. Discretion connotes cool judgment, not warm zeal.
Krane also argues that the death penalty is a "reflection of the most current and deep-seated attitudes of the people of New York State, as seen over the last decade in the overwhelming affirmative votes of legislature after legislature." Thus, he suggests that prosecutors have no choice but to carry out the will of the people, as expressed by the legislature, to seek the death penalty. In fact, however, the legislature has not sought to coerce prosecutorial discretion with regard to the death penalty. The law expressly gives the prosecutor the choice of seeking life imprisonment without parole.
Krane contends, though, that those prosecutors who have said that they will not request the death penalty have failed to exercise discretion at all. But it is hard to see how he can know that. A general prosecutorial policy about what crimes to pursue and what penalties to seek is not uncommon. A general policy against seeking the death penalty might well be based on a judgment that it is more difficult to persuade juries to convict in death cases, thereby raising the risk of acquittals of defendants who are dangerous to the community. Also, prosecutors might be unwilling to divert scarce resources from other priorities to upholding death verdicts, which is a notoriously heavy drain in personnel, time, and money.
Risky Business
In addition, it is entirely proper - indeed, it is inevitable -that a significant factor in every prosecutor's discretion should be the prosecutor's own sense of morality. There have been sufficient executions of innocent people to make a conscientious prosecutor unwilling to accept that risk and carry the terrible personal burden of error. The legislature has expressly allowed each prosecutor to make his or her own choice. It would be wrong, then, for a disciplinary body, on the basis of a contrary moral judgment, to seek to compel a prosecutor's discretion.
Finally, if the people disapprove of how particular prosecutors are exercising their discretion, the people can vote them, or those who appointed them, out of office. In New York, for example, prosecutors are elected. Those prosecutors who have been courageously candid with the public about their position on the death penalty have therefore put their careers on the line. This may not be good politics, but it is certainly good ethics.
(Monroe Freedman is the Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University. His latest book is Group Defamation and Freedom of Speech: The Relationship Between Language and Violence (Greenwood, 1995).
Legal Times is an affiliate publication of Court TV.)
