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Bruce A. Green, Access to Criminal Justice: Where Are the Prosecutors? 3 Tex. A&M L. Rev. 515 (2016).

Jurisdictions around the world have adopted “access to justice” as an objective for regulation of the legal profession. Despite the widespread recognition of the importance of access to justice, there is no consensus on its meaning. Often commentators and advocates use the term to refer access to civil legal services for low income clients. In this article, Professor Bruce A. Green persuasively explains why such a connotation is entirely too narrow. He challenges readers to consider the meaning of “justice,” asking provocatively, “what happened to criminal justice?” One reason that I recommend reading this article is that it illuminates the pivotal role that prosecutors play in the pursuit of criminal justice and identifies specific steps that prosecutors should take to avert individual injustices, as well as systematic injustices.

To answer the question, “where are the prosecutors?” Professor Green first considers whether “access to justice” has been misappropriated by the civil pro bono movement. As noted by Professor Green, one justification advanced for focusing on civil justice is that indigent defendants who face incarceration are entitled to legal counsel.  He explains that this rationale overlooks various limitations in Gideon v. Wainwright, 372 U.S. 335 (1963) and its progeny. Most notably, he clarifies that not all criminal defendants receive a qualified lawyer and that the Constitutional remedy for substandard representation is weak. To recognize the fact that there continues to be serious access to justice barriers faced by criminal defendants, Professor Green suggests that the bench and bar use their words carefully by not equating access to justice with access to civil justice. Rather he reminds us that no one should be “misled to believe that we have gone as far as necessary to secure criminal justice in this country.”

Using that exhortation as a jumping off point, Professor Green analyzes what it means for prosecutors to discharge their duties as ministers of justice and the organized bar’s role in influencing prosecutor conduct. As explained, the organized bar has largely focused these efforts on the minimal legal and ethical standards applicable to prosecutors and on prosecutors who fail to meet them. Although ABA Model Rule of Professional Conduct 3.8 is entitled “Special Responsibilities of a Prosecutor” and Comment (1) to Rule 3.8 states that a prosecutor has “the responsibility of a minister of justice and not simply that of an advocate,” the rule itself sets forth the minimum standards for a prosecutor to avoid professional discipline, such as the requirement for disclosure of information and evidence that is favorable to the defense. Beyond these minimum standards, Professor Green suggests a more demanding concept of a “good prosecutor,” urging the organized bar to spearhead serious examination of prosecutors’ justice-seeking role. Beyond abstract appeals, he identifies concrete contexts in which the bar can advance a more expansive role and recognize good prosecutors. He urges the organized bar to take the lead in tackling both individual injustices, as well as systematic injustices.

To illustrate how prosecutors should do more than the “minimum” to avert individual injustices, Professor Green uses the case of Anthony Ray Hinton, an exoneree who sat on death row for over 30 years, until eventually the U.S. Supreme Court acted. Although prosecutors in that case may not have violated minimum standards, Professor Green asserts that their duties as good prosecutors “presupposed that they take reasonable steps to avoid convicting innocent people.” In addition to describing specific steps that a “good prosecutor” should have taken, he suggests that the most important change may be prosecutors embracing the role as a minister of justice. He concludes by charging the bar to rethink its approach to criminal injustices. “When criminal injustices occur, the bar should ask–and try to answer—not only whether prosecutors caused the injustice, but whether good prosecutors could have prevented it.”

Prosecutors who serve as ministers of justice can play as important role as defense lawyers in preventing the conviction and incarceration of innocent persons. This is a perspective that the late Professor Monroe Freedman regularly shared with law students and new lawyers committed to advancing criminal justice. Professor Freedman encouraged them to seriously consider pursuing careers as prosecutors – as “good prosecutors.” Admittedly, Professor Freedman, like Professor Green, fully appreciated that the culture of prosecutors’ offices may make it difficult for prosecutors to “do justice” because of the incentives and disincentives. For example, does a prosecutor’s professional advancement largely turn on the number of convictions obtained. Good prosecutors should not be resigned to such organizational influences, but should lead efforts to shape cultures and incentives “to promote fair process, proportional punishment, and equal justice.”

In another article, Professor Green suggests that “doing justice” might mean “overcoming one’s own self-interest or ennui.”1 As stated:

In the face of contrary pressures and expectations, both external and internal, it may take a certain amount of inner strength (or strength of character) for an individual prosecutor to decide not to bring criminal charges or to dismiss criminal charges, to comply with procedural norms that make it more difficult to secure convictions, to confess error, or to seek to overturn a conviction that was unfairly procured. Id.

Professor Green, with Professor Ellen Yaroshefsky, examined the role of external and internal factors in an empirical study involving state prosecutors in seven offices in different parts of the U.S.2 In studying how the prosecutors handled pretrial disclosure, they learned that the principal influences on prosecutors’ decision making are likely “organizational factors.” Id. at 270. Based on their study findings they conclude that the “most significant factor influencing prosecutors’ decisions are office policy, informal understandings, culture and internal regulatory and supervisory practices.” Id. at 289. As suggested by the study findings, any serious examination of prosecutorial conduct must consider the dominant role that organizational influences play.

In responding to Professor’s Green’s question (Where are the Prosecutors?) and his call for action, the hope is that concerned persons will do more than revise professional conduct rules related to prosecutor conduct. Rather than being satisfied with rule changes that may address the conduct of individual prosecutors, the organized bar and prosecutors themselves should seriously examine and change ethical infrastructures and other organizational influences that shape prosecutors’ conduct and affect access to justice for criminal defendants.

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  1. Bruce A. Green, Why Should Prosecutors “Seek Justice”? 26 Fordham Urban Law Journal 607 (1999).
  2. See Ellen Yaroshefsky & Bruce A. Green, Prosecutor’s Ethics in Context: Influences on Prosecutorial Disclosure, in LAWYERS in Practice, Ethical Decision Making in Context (Leslie C. Levin & Lynn Mather, Eds).
Cite as: Susan Fortney, The Role of “Good Prosecutors” in Advancing Access to Criminal Justice, JOTWELL (February 20, 2017) (reviewing Bruce A. Green, Access to Criminal Justice: Where Are the Prosecutors? 3 Tex. A&M L. Rev. 515 (2016)),