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Somehow, it is understood that prosecutors have the high ground. Most people simply assume that prosecutors are the good guys, wear the white hats, and are on the "right" side. Most law students contemplating a career in criminal law seem to think this. It could be that most practicing lawyers think this, as well.

Prosecutors represent the people, the state, the government. This is very noble, important, and heady stuff. Prosecutors seek truth, justice, and the American way. They are the ones who stand up for the victims and would-be victims, the bullied and battered and burgled. They protect all of us.

Defenders are always on the defensive. In a social climate that exalts crime control over everything else, defenders are barely tolerated. It is sometimes hard for the public to distinguish defenders from the "scum" we represent. We are often seen as our clients' accomplices or, at best, their apologists.

Much has been written about whether you can be a good person and a good defender--that is, whether it is morally acceptable to defend people who do bad things--and what the personal and professional dilemmas are for those who engage in such work.

Almost nothing has been written about whether you can be a good person and a good prosecutor--that is, whether it is morally acceptable to prosecute people who do bad things. At the heart of this question is the reality that prosecution inevitably leads to punishment, which, in recent times, means locking people up (especially some people) for very long periods of time, and, with increased regularity, executing them.

In this article, the author examines the morality of prosecution. First, she explores the context of criminal lawyering at the millennium and what it means to prosecute under current conditions. Then, she discusses whether it is possible to do "good" in this context--that is, whether a well-intentioned prosecutor can temper the harsh reality of the criminal justice system--in view of the institutional and cultural pressures of prosecutor offices. The author concludes by answering the question she poses in the title of this article and addressing some likely objections.

Publication Citation

14 Geo. J. Legal Ethics 355-400 (2001)