The Health Care Debate and the Decision to Prosecute

What is a life worth?  Who decides?  How much money should be spent to save a life or to cure a disease or to ease suffering?  What is a reasonable amount to spend to on health?  These are some of the questions at the heart of the health care “debate.”

Some of those questions are every bit as applicable to a quite different context:  criminal prosecution.  When the government, especially the federal government, decides to prosecute, the health of the defendant is put at risk.  This, perhaps, an odd way to think of things, linking the decision to prosecute to health care.  But there is a common, underlying question:  how much is a life worth?

There is no private insurance – none that I know of – that will pay for an experienced criminal defense lawyer.  No insurance to pay for the the equivalent of x-rays, blood tests and MRIs, namely the kind of intense factual investigation necessary to (a) gather evidence, (b) analyze the case, (c) properly advise the client and (d) prepare and, if necessary, present a defense.

As the Miranda warning advises, ” If you can not afford a lawyer, one will be appointed for you.” If you can not afford a doctor, one will be appointed for you.  Not a specialist.  Not an experienced doctor.  Having “a lawyer” appointed for you, may or may not do the defendant any good.

Due process, like good health care, is expensive, very, very expensive.  It is impossible to guarantee it in every case.  I suspect it would be depressing to learn how many criminal defendants are not so much represented as processed.

This may not be such a bad thing in many cases.  It may well be true that most people who are prosecuted (different from being charged with a crime), are guilty.  Best to plead guilty.  Best for all concerned.

But we know that not everyone who is prosecuted is guilty.  We know that people who are, if not innocent, then not guilty are found guilty and sentenced to prison, sometimes to death.

This is a long-winded way of making a simple point:  on a day in an day out basis, prosecutors at every level are the most important and the most powerful lawyers in the country.  In a perfect world, they would be insulated from political pressure, and among the best trained, most highly respected lawyers in the country.  They would have all the resources necessary to gather and to analyze evidence not with an eye toward conviction but in order to make  judicious decision about whether or not to prosecute, about what crimes to charge.

The word “prosecutor” is, in a sense, unfortunate because it assumes there will be a prosecution.  The title gives no indication that the prosecutor’s most important function is to decide whether or not to prosecute.  His second most important function is to play by the rules, to be above reproach, to be of unquestioned integrity.  That’s asking an awful lot.  The criminal justice system seems – from my seat deep in the bleachers – to be crowded, hectic, depressing, and often frightening.  Defense lawyers have somewhat greater latitude.  Unlike prosecutors, whose primary obligation – in theory – is to do justice, defense lawyers are required, with the rules, to do whatever they can to prevent the government from proving guilty beyond a reasonable doubt.

One of the nation’s most prominent law schools should establish an Institute for the training of prosectors and for the study of the prosecutorial function, including an emphasis on the role of science in gathering and assessing evidence, a cross-disciplinary approach to improving the criminal justice system. There should be national standards for prosecutors and for prosecutions.  Prosecutors and prosecutions are too important to just forget about.