(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform

Open Access

Abstract

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as "ministers of justice" to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor's adversarial duties and "minister of justice" role in the context of specific litigation, few have explored what it means to be an "administer" of justice in the wider political arena. The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan "administer of justice" in her legislative and public advocacy activities. Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor's administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses. Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts. The author distinguishes this argument against mandatory minimum penalties from the so-called "Smart on Crime" movement, by grounding a prosecutor's duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations. Even with robust political support from some of this nation's most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences. Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above. A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature. While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them. The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.