CBA Record March-April 2020

Having said that, it would be foolish to ignore the reality that the justice system functions through human beings, so mis- takes are made and, in some unfortunate cases, intentional wrongdoing takes place. That is a problem with our current system. That will also be a problemwith any system we devise to take its place. This is not to say that issues should be ignored. This book, despite its problems, raises hard questions that challenge us all to think about how the justice system can be made better. To her credit, Bazelon offers a series of recommendation that she believes will lead to fairer prosecutions and reduce the prison population. They are worth review and discussion by all who care about a fair and effective justice system. But these recommendations, like the book, should be analyzed not in a vacuum but in the context of how the justice system functions. Otherwise, it is likely that the real issues will be missed or misunderstood. And while these discussions are taking place, we should remember that the pros- ecutor’s basic responsibility is to fairly and professionally hold accountable those who would prey on their fellow citizens, and seek sentences that provide appropriate punishment based on the evidence in the case.

qualified immunity, the same standard applied to the police. Qualified immunity leaves prosecutors open to civil damage claims if their conduct violates “clearly established statutory or constitutional rights….” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Moreover, prosecutorial immunity applies only to civil suits and does not preclude criminal charges or sanctions imposed by the courts or state licensing bodies. Some commentators have argued that such sanctions are rarely imposed. If true, perhaps the focus should be on those who have failed to exercise the power given to them. Bazelon is correct in recommending that training programs for prosecutors include presentations on ethical obligations and the overriding need to see that justice is done in each case. Many prosecutors’ offices have been doing that for years, but it should be the standard in every jurisdiction. That initial training should be reinforced by supervisors who, by their oversight and evaluations, make it clear that the lectures are not just words but operating principles for the office. Final Thoughts Prosecutors have a significant role in our criminal justice system and should, as Bazelon argues, be fair in exercising their power. My experience has been that most prosecutors want to do the right thing, to hold the right people accountable for their criminal acts and make their communities safe places. They are not obsessed with putting another case in the win column, regardless of the evidence.

time offenders but only with an evaluation of the facts in each case. A broadly applied diversion policy could significantly weaken the ability of law enforcement to protect innocent citizens from serious crimes. We should, of course, be thoughtful about whom we send to prison and look at ways to divert appropriate cases. At the same time, reduction of the prison population is not an end in itself. There are people who clearly belong behind bars, and it is not a step forward to keep them in the community simply for the sake of lower incarceration numbers. Prosecutorial Misconduct Bazelon expresses concern about the legal immunity given to prosecutors’ allegedmis- conduct. (pp. 256-60). Depending on the circumstances, prosecutors may have either absolute or qualified immunity. Absolute immunity is available to prosecutors only for actions and decisions closely associated with the trial process. The public policy behind absolute prosecutorial immunity stems from the same considerations relat- ing to immunity for judges. The policy is based not on protecting prosecutors, but rather protecting the public from the con- sequences of prosecutors being distracted from their duties, or, even worse, failing to fulfill their duties because of concerns over possible litigation. Kalina v. Fletcher , 522 U.S. 118, 125 (1997). There has been considerable debate about whether such a shield goes too far, but the protection is well established and limited in its application. For example, if prosecutors engage in non-prosecutorial work such as investigations, they have only

Richard Devine was Cook County State’s Attorney from 1996 to 2008. He currently is of counsel at Chi- cago law firm Cozen O’Connor.

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