The Sky Ins’t Falling, Part Two
January 8th, 2018
On District Attorney Larry Krasner’s fourth day in office, he fired 31 prosecutors in what the media characterized as one of the most “shocking and drastic shakeups that anyone could recall.” “The purge was on full display,” said Dann Cuellar of Action News, while long-time assistant DA’s left the office with boxes in hand. Vernon Odom declared that Krasner had fired “hundreds of years of prosecutorial experience.” The Inquirer quoted unnamed sources who attributed the firings to vendettas or “run-ins with Krasner’s one-time peers in the defense bar” or even his wife, Common Pleas Judge Lisa Rau. Even the venerable Jim Gardner joined the fray, noting that Krasner has a problem with mass incarceration but apparently no problem with “mass firings.”
Richard Sax, a now retired long-time prosecutor (who the ACCR staff knows personally), has over the past ten months or so made himself the leader of the Krasner resistance. Sax claimed that the firings were “personal and vindictive,” and would cause lasting damage to the office: “They won their cases. They prevailed. They achieved justice for their victims. That’s what they did, they did their job.”
Sax’s cataloguing of his former associates’ qualities is both shocking and revealing: in his view, a prosecutor’s duty (his job!) is to win cases, to do justice not for the community, but for the victim. Fortunately the law says otherwise, as best articulated in the United States Supreme Court case Berger v. United States 82 years ago. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” It is likely that Sax read Berger in law school, but apparently the lesson didn’t sink in: a prosecutor’s job is not to win, nor is it to represent the victim; rather, her job is the hardest one there is. To do justice.
Given the reaction of the media and select former prosecutors, a stranger might think that Philadelphia has just lived through a golden age of criminal justice, and that losing 10% of the staff (Rendell fired 25% of his staff when he became DA) is the legal equivalent of decimating the 1927 Yankees. Such is not the case, of course. The last DA is now in prison, the one before him a national embarrassment for her overly aggressive prosecution style that now seems utterly anachronistic. Almost 100 death sentences have been reversed, many for prosecutorial misconduct.
The implication of the media overreaction is that Krasner is intentionally weakening his office, as if he were pro-crime and pro-criminal. This is a canard spread by the very people responsible for overcrowding our prisons, excessively seeking the death penalty, and winning cases at any cost. The fairer conclusion is that Krasner has not only read Berger v. United States, but has understood it as well. Once again, allegations of a falling sky are unfounded.