While there are good constitutional reasons for barring prosecutors from speaking directly with defendants without their attorneys’ permission, it shouldn’t prevent them from trying to understand the lives and perspectives of those most affected by what they do, writes a former assistant district attorney.
You don’t expect to hear much from somebody who has been told “anything you say can and will be used against you.”
Indeed, a defendant’s voice is usually only raised after it is safely behind the wall of attorney-client privilege.
And so, while the right to remain silent is a vital protection guaranteed by our justice system, it has the unfortunate side effect of ensuring that prosecutors are never in a position to hear about—or truly understand—the lives of those they prosecute.
Prosecutors are barred from speaking directly with any defendant represented by counsel without the permission of that attorney. As a result, to the extent that any information is exchanged, it is usually with defense counsel acting as intermediary in a bad game of telephone that tends to strip nuance and humanity from the narrative.
This makes it all too easy for a prosecutor to regard a defendant as little more than a name on a case file.
A welcome crack in this wall of silence was made at Suffolk County, Mass., recent district attorney candidates’ forum at the Suffolk County House of Correction. Potentially the first of its kind, this event flipped the usual script by placing incarcerated individuals in the questioner’s chair, allowing them to force the candidates to consider prosecutorial objectives and actions from the viewpoint of the prosecuted.
Such perspectives tend to be lost when it is time for prosecutorial policy to be made, and justice suffers for it. Surrounded by police officers and victims, and operating in an environment that too frequently speaks in terms of binary outcomes— guilty or not guilty—it can be easy to forget that while our system may be adversarial, that should not apply to rehabilitation.
If these district attorney candidates are serious about preventing future crimes, not simply punishing past ones, then they cannot lose sight of this goal.
Advancing policies with a more cooperative focus, including diversion programs that provide alternatives to the criminal system, is key to realizing this objective. Similarly, district attorneys have incredible authority and discretion to shape the dispensation of justice within the system through charging, bail, and sentencing guidance.
Thoughtful and nuanced policies can help reinforce for prosecutors that the institutional ideal is justice, not convictions, and that the two are not always one and the same.
Of course, there are also limits on the ability of district attorneys to control events, even within their own offices. Especially in Massachusetts’ district courts, which handle around 170,000 cases annually involving misdemeanors and less serious felonies, cases come too fast and justice is meted out too messily for top down decision making to be effective.
This is why district attorneys must work to ensure that even their newest assistant district attorneys are exposed to training and experiences that will better help them view cases in shades of gray rather than black and white.
As basic and blunt a measure as it may seem, leaders should encourage—if not outright mandate—that all new assistant district attorneys visit their local jail and experience, if only briefly, the nature of that confinement. With the wisdom of hindsight, it now seems like borderline malpractice that I could have argued for years as an assistant district attorney in Essex County to send people to a jail I had never even seen.
While this oversight speaks to my own shortsightedness, it also points to a greater institutional failing given that my experience—or lack thereof— was hardly an outlier in the office.
Trust is, understandably, difficult to come by in the criminal justice system. As such, it is hard to fault a defense attorney who counsels his or her client to remain tight lipped in the presence of the prosecutor. Indeed, in many instances, this will be the best course of action.
For some, particularly more minor crimes, however, the defense may find value in opening a dialogue with the other side.
Rarely did I ever encounter a more powerful advocate than a defendant himself. Not in terms of legal arguments—I saw plenty of proof of the old maxim “a man who is his own lawyer has a fool for his client” —but in the ability to provide context to actions and depth to characters. These encounters often favorably shaped my view of the defendant in a given case and even helped, over time, to shift my approach to prosecution.
One debate in a Suffolk County jail may not fundamentally alter how these prospective district attorneys act once in office, but forcing them to consider the viewpoints of incarcerated individuals is an important first step toward piercing the insular nature of prosecutorial culture.
The more that can be done to reduce the inherent, silent “othering” of criminal defendants, the closer the justice system will come to living up to its name.
Lars Trautman is a senior fellow at the R Street Institute. He previously served as an assistant district attorney in Essex County, Massachusetts.