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When Prosecutor Turns Thug

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Professor R. Michael Cassidy of Boston College Law School had a long and, so far as I know, distinguished career as a Massachusetts prosecutor.  He has been teaching law for the last 17 years.  He has recently written a piece, which can be found here on SSRN, in which he takes the view that prosecutors have an ethical duty as, in effect, "ministers of justice," to support (if not campaign for) what he terms "sentencing reform."

By that phrase, Prof. Cassidy means something specific:  He means that prosecutors are ethically obligated to support an end to many or perhaps most mandatory minimum sentencing statutes.  In the SSRN abstract, the argument is made that the prosecutor's ethical responsibilities (emphasis added):

...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.

When a prosecutor has an ethical duty and breaches it, he should be and is subject to discipline  --  a reprimand, suspension from practice or, in severe cases, disbarment. Unless I am missing something, then, a prosecutor who does not speak out to support Prof. Cassidy's views on mandatory minimum sentencing should, by the Professor's logic, be punished, perhaps severely.

Does anyone see anything wrong with this? 
I, for one, see a great deal wrong with it.  

The first thing wrong is its preposterous assumption that there is no rational argument to be had in favor of mandatory minimum sentencing.  I have made what I would respectfully suggest is at least a rational argument, here and in the media, including, among other places, MSNBC's Hardball,USA Today and US News and World Report.  Indeed, Prof. Cassidy acknowledges in his piece that increased incarceration, in which mandatory minimum sentencing has played a significant role, has accounted for between "a quarter and a third" of the enormous decrease in crime over the last generation.  That of course is not the end of the argument, but it is surely the end of the on-high notion that no ethical prosecutor could think that, on balance, and even considering its costs, mandatory sentencing is worthwhile.

The second thing wrong with Prof. Cassidy's argument is that, having assumed the apparently invincible correctness of its position, the remedy for prosecutors who do not agree is to be branded "unethical" rather than merely mistaken or misguided. The arrogance, and more ominously the thuggishness, of this "remedy" is astounding.

The third thing wrong with it is its flagrant unconstitutionality. Under the First Amendment, no one can be coerced into saying or believing anything.  But Prof. Cassidy would use the coercive power of ethics sanctions -- ultimately backed up by the state supreme court -- to force prosecutors into supporting his version of sentencing "reform."

I might add that, under the Professor's view, Eric Holder himself is to be labelled "unethical," since he has directed federal prosecutors in many cases to write the indictment in a way that would not invoke the minimum sentence, but, conspicuously, has not called for their abolition, either by executive fiat or (more appropriately if abolition is to be done) by the Congress that enacted them.

I have from time to time criticized the increasing tendency of liberals to use muscle when persuasion falls flat.  Prof. Cassidy is of course free to hold his beliefs and vocally to argue for them, as others, particularly in academia, have done.  One would hope he would accommodate the freedom of those still practicing as prosecutors to think and argue in opposition. But by branding their disagreement as unethical  --  and thus necessarily as sanctionable by the bar  --  he would, not only besmirch their integrity, but use the power of the court to punish them and coerce their genuflection. 

P.S.  I intend to email this post to Prof. Cassidy and invite him to respond if he cares to. Reasoned dissent may no longer be welcome in some quarters, but it is welcome here.

 


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