| Abstrakt: |
The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state. “Doing justice” is the orienting creed of prosecutorial ethics, in theory, while on the ground, American prosecutors routinely indulge in unjust practices. This Article argues that prosecutors’ membership in an undifferentiated legal profession is the key to understanding the contradiction. Lawyers’ training, socialization, and professional regulation fixate on “client control”—i.e., the principle that clients, not lawyers, make the most important normative decisions that arise in legal matters. This professional ethic may or may not be justified for lawyers generally, but it is insidious for prosecutors. That is because it gives prosecutors permission to bypass fundamental questions about whether a conviction or a tactic used to secure one is just. To do justice, prosecutors—individually and collectively—must unlearn the ethic of client control. That, this Article contends, is a mission for a prosecution bar vested with the power to license, regulate, and discipline prosecutors. By developing ethical rules and professional norms calibrated for prosecutors, not lawyers in general, a prosecution bar could make “seeking justice” a genuine limitation on prosecutorial practices. [ABSTRACT FROM AUTHOR] |
