Academic journal article Boston University Law Review

The Prosecutor's Client Problem

Academic journal article Boston University Law Review

The Prosecutor's Client Problem

Article excerpt


The last two decades saw a dramatic increase in misdemeanor prosecutions.1 The direct and collateral consequences associated with these convictions also rose. Indeed, the punishments associated with misdemeanor convictions rose so steeply in the modern era that they often carry the same or similar risk of personal and social consequences accompanying felony convictions.2

By some estimates, there are currently more than forty-five thousand state and federal consequences for convictions in the United States.3 Other studies report a rapid expansion in both the number and type of consequences associated with misdemeanor convictions in particular. These include limitations on housing rights, access to student and other loans, and custody rights.4 Direct consequences of misdemeanor convictions also include hefty fines which many indigent defendants cannot afford to pay, as well as significant time in jail at the outset or as a result of failing to pay the fines.5 Even without the imposition of jail time, the fees imposed by courts for misdemeanor convictions can result in mounting debt for those already struggling financially, further contributing to destabilizing self-perceptions of a defendant citizen's rightful place in society.6

As the number of misdemeanor arrests and convictions rise, so too do the adverse social effects on the communities in which these misdemeanor defendants reside. A prolific misdemeanor practice in any given jurisdiction limits the number of community inhabitants that can truly thrive in their homestead. The practice prevents ordinary citizens from engaging in all of the trappings of a more stable and consistent life at home, and can also impact the stability of their familial and social networks. The negative effects of such a misdemeanor practice are particularly problematic in communities that are already impoverished and whose occupants are already struggling to maintain a positive foothold in both their financial engagements and social networks.7 Mass prosecution of misdemeanors constricts free movement and social advances, and, in turn, makes the already difficult tasks of finding employment or affording the basic necessities of life even more difficult.8 This increases strain on the familial and social relationships that would ordinarily enrich a person's life.

Scholars have advanced a number of solutions to the complications arising from the misdemeanor charging process. Some scholars advocate for complete decriminalization of certain behaviors by moving them to other state, civil, or regulatory schemes.9 Others argue that problems within the criminal justice system are more adequately addressed by identifying and eliminating racism and bias among the primary decision-makers of the criminal justice process.10 Still others postulate that securing better representation for defendants will more adequately combat the misdemeanor justice problem by enabling public defenders to assume more active roles in case management and outcomes.11 There may well be a place for all of these ideas in an integrated and consolidated plan for overhauling the misdemeanor criminal process. Little has been said, however, about the role of the prosecutor's charging decision and its tense relationship with ethical and professional guidelines that govern relationships between attorneys and their clients.

A significant point, however, is that the prosecutor does not have a "client" in the traditional sense of the word. Unlike the traditional attorney/client paradigm, a prosecutor does not have a single representative they can turn to in making their decisions. The prosecutor does not have an individual who appears with them before the court in the course of litigation or who directs final dispositions of legal proceedings, all of which are traditional responsibilities of an attorney's client.

Despite the absence of an easily recognizable and traditional client, the prosecutor engages in her prosecutorial practice on behalf of either some person, some group of persons, or some entity. …

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