Robert
H. Jackson, ‘The Federal Prosecutor,’ 24 J. Am. Jud. Soc’y 18 (1940), 31 J.
Crim. L. 3 (1940) (address at Conference of United States Attorneys,
Washington, D.C., Apr. 1, 1940), <https://roberthjackson.org/speech-and-writing/the-federal-prosecutor/>,
<https://www.roberthjackson.org/wp-content/uploads/2015/01/The_Federal_Prosecutor.pdf>.
Jackson’s
speech as reported on The Robert H. Jackson Center website:
The
qualities of a good prosecutor are as elusive and as impossible to define as
those which mark a gentleman. And those who need to be told would not
understand it anyway.
It
would probably be within the range of that exaggeration permitted in Washington
to say that assembled in this room is one of the most powerful peace-time
forces known to our country. The prosecutor has more control over life,
liberty, and reputation than any other person in America. His discretion is
tremendous. He can have citizens investigated and, if he is that kind of
person, he can have this done to the tune of public statements and veiled or
unveiled intimations. Or the prosecutor may choose a more subtle course and
simply have a citizen’s friends interviewed. The prosecutor can order arrests,
present cases to the grand jury in secret session, and on the basis of his
one-sided presentation of the facts, can cause the citizen to be indicted and
held for trial. He may dismiss the case before trial, in which case the defense
never has a chance to be heard. Or he may go on with a public trial. If he
obtains a conviction, the prosecutor can still make recommendations as to
sentence, as to whether the prisoner should get probation or a suspended
sentence, and after he is put away, as to whether he is a fit subject for
parole. While the prosecutor at his best is one of the most beneficent forces
in our society, when he acts from malice or other base motives, he is one of
the worst.
These
powers have been granted to our law-enforcement agencies because it seems
necessary that such a power to prosecute be lodged somewhere. This authority
has been granted by people who really wanted the right thing done—wanted crime
eliminated—but also wanted the best in our American traditions preserved.
Because
of this immense power to strike at citizens, not with mere individual strength,
but with all the force of government itself, the post of federal district
attorney from the very beginning has been safeguarded by presidential
appointment, requiring confirmation of the senate of the United States. You are
thus required to win an expression of confidence in your character by both the
legislative and the executive branches of the government before assuming the
responsibilities of a federal prosecutor.
Your
responsibility in your several districts for law enforcement and for its
methods cannot be wholly surrendered to Washington, and ought not to be assumed
by a centralized department of justice. It is an unusual and rare instance in
which the local district attorney should be superseded in the handling of
litigation, except where be requests help of Washington. It is also clear that with
his knowledge of local sentiment and opinion, his contact with and intimate
knowledge of the views of the court, and his acquaintance with the feelings of
the group from which jurors are drawn, it is an unusual case in which his
judgment should be overruled.
Experience,
however, has demonstrated that some measure of centralized control is
necessary. In the absence of it different district attorneys were striving for
different interpretations or applications of an act, or were pursuing different
conceptions of policy. Also, to put it mildly, there were differences in the
degree of diligence and zeal in different districts. To promote uniformity of
policy and action, to establish some standards of performance, and to make
available specialized help, some degree of centralized administration was found
necessary.
Our
problem, of course, is to balance these opposing considerations. I desire to
avoid any lessening of the prestige and influence of the district attorneys in
their districts. At the same time we must proceed in all districts with that
uniformity of policy which is necessary to the prestige of federal law.
Nothing
better can come out of this meeting of law enforcement officers than a
rededication to the spirit of fair play and decency that should animate the
federal prosecutor. Your positions are of such independence and importance that
while you are being diligent, strict, and vigorous in law enforcement you can
also afford to be just. Although the government technically loses its case, it
has really won if justice has been done. The lawyer in public office is
justified in seeking to leave behind him a good record. But he must remember
that his most alert and severe, but just, judges will be the members of his own
profession, and that lawyers rest their good opinion of each other not merely
on results accomplished but on the quality of the performance. Reputation has
been called ‘the shadow cast by one’s daily life.’ Any prosecutor who risks his
day-to-day professional name for fair dealing to build up statistics of success
has a perverted sense of practical values, as well as defects of character.
Whether one seeks promotion to a. judgeship, as many prosecutors rightly do, or
whether he returns to private practice, he can have no better asset than to
have his profession recognize that his attitude toward those who feel his power
has been dispassionate, reasonable and just.
The
federal prosecutor has now been prohibited from engaging in political
activities. I am convinced that a good-faith acceptance of the spirit and
letter of that doctrine will relieve many district attorneys from the
embarrassment of what have heretofore been regarded as legitimate expectations
of political service. There can also be no doubt that to be closely identified
with the intrigue, the money raising, and the machinery of a particular party
or faction may present a prosecuting officer with embarrassing alignments and
associations. I think the Hatch Act should be utilized by federal prosecutors
as a protection against demands on their time and their prestige to participate
in the operation of the machinery of practical politics.
There
is a most important reason why the prosecutor should have, as nearly as
possible, a detached and impartial view of all groups in his community. Law
enforcement is not automatic. It isn’t blind. One of the greatest difficulties
of the position of prosecutor is that he must pick his cases, because no
prosecutor can even investigate all of the eases in which he receives
complaints. If the department of justice were to make even a pretense of
reaching every probable violation of federal law, ten times its present staff
would be inadequate. We know that no local police force can strictly enforce
the traffic laws, or it would arrest half the driving population on any given
morning, What every prosecutor is practically required to do is to select the
cases for prosecution and to select those in which the offense is the most
flagrant, the public harm the greatest, and the proof the most certain.
If
the prosecutor is obliged to choose his cases, it follows that he can choose
his defendants. Therein is the most dangerous power of the prosecutor: that he
will pick people that he thinks he should get, rather than pick cases that need
to be prosecuted. With the law books filled with a great assortment of crimes,
a prosecutor stands a fair chance of finding at least a technical violation of
some act on the part of almost anyone. In such a case, it is not a question of
discovering the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching the law books,
or putting investigators to work, to pin some offense on him. It is in this
realm—in which the prosecutor picks some person whom he dislikes or desires to
embarrass, or selects some group of unpopular persons and then looks for an
offense, that the greatest danger of abuse of prosecuting power lies. It is
here that law enforcement becomes personal, and the real crime becomes that of
being unpopular with the predominant or governing group, being attached to the
wrong political views, or being personally obnoxious to or in the way of the
prosecutor himself.
In
times of fear or hysteria· political, racial, religious, social, and economic
groups, often from the best of motives, cry for the scalps of individuals or
groups because they do not like their views. Particularly do we need to be
dispassionate and courageous in those cases which deal with so called ‘subversive
activities.’ They are dangerous to civil liberty because the prosecutor has no
definite standards to determine what constitutes a ‘subversive activity,’ such
as we have for murder or larceny. Activities which seem benevolent and helpful
to wage earners, persons on relief, or those who are disadvantaged in the
struggle for existence may be regarded as ‘subversive’ by those whose property
interests might be burdened or affected thereby. Those who are in office are
apt to regard as ‘subversive’ the activities of any of those who would bring
about a change of administration. Some of our soundest constitutional doctrines
were once punished as subversive. We must not forget that it was not so long
ago that both the term ‘Republican’ and the term ‘Democrat’ were epithets with
sinister meaning to denote persons of radical tendencies that were ‘subversive’
of the order of things then dominant.
In
the enforcement of laws that protect our national integrity and existence, we
should prosecute any and every act of violation, but only overt acts, not the
expression of opinion, or activities such as the holding of meetings,
petitioning of congress, or dissemination of news or opinions. Only by extreme
care can we protect the spirit as well as the letter of our civil liberties,
and to do so is a responsibility of the federal prosecutor.
Another
delicate task is to distinguish between the federal and the local in
law-enforcement activities. We must bear in mind that we are concerned only
with the prosecution of acts which the congress has made federal offenses.
Those acts we should prosecute regardless of local sentiment, regardless of
whether it exposes lax local enforcement, regardless of whether it makes or
breaks local politicians.
But
outside of federal law each locality has the right under our system of
government to fix its own standards of law enforcement and of morals. And the
moral climate of the United States is as varied as its physical climate. For
example, some states legalize and permit gambling, some states prohibit it
legislatively and protect it administratively, and some try to prohibit it
entirely. The same variation of attitudes towards other law-enforcement
problems exists. The federal government could not enforce one kind of law in
one place and another kind elsewhere. It could hardly adopt strict standards
for loose states or loose standards for strict states without doing violence to
local sentiment. In spite of the temptation to divert our power to local
conditions where they have become offensive to our sense of decency, the only
long-term policy that will save federal justice from being discredited by
entanglements with local politics is that it confine itself to strict and
impartial enforcement of federal law, letting the chips fall in the community
where they may. Just as there should be no permitting of local considerations
to stop federal enforcement, so there should be no striving to enlarge our
power over local affairs and no use of federal prosecutions to exert an
indirect influence that would be unlawful if exerted directly.
The
qualities of a good prosecutor are as elusive and as impossible to define as
those which mark a gentleman. And those who need to be told would not
understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps
the best protection against the abuse of power, and the citizen’s safety lies
in the prosecutor who tempers zeal with human kindness, who seeks truth and not
victims, who serves the law and not factional purposes, and who approaches his
task with humility.
[END]
Seth Barrett Tillman, ‘Something No One Is Talking About Today,’ New Reform Club (Mar. 31, 2023, 7:24 AM), <https://reformclub.blogspot.com/2023/03/something-no-one-is-talking-about-today.html>;
