Kay L. Levine

Can Prosecutors be Social Workers

How do prosecutors behave when the state puts them in charge of solving social problems? Drawing on interviews with prosecutors in California, this article investigates the degree to which problem-oriented strategies can transform the conventional prosecutorial role. The data show that problem-oriented prosecutors regard themselves as more responsive to the communities they serve and more inclined to develop creative and broad-ranging strategies to manage deviance within these communities. But there are significant limitations to the social worker role embedded in the problem orientation. First, problem-solving approaches are most compatible with chronic, low-level criminal offenses that hold little professional allure for prosecutors, who therefore have little incentive (at least in traditional professional terms) to devote time and energy to solving them. Second, the problem-oriented model produces among prosecutors a challenging role conflict, as the skills required for effective, creative problem-solving contrast sharply with those traits that traditionally define a good prosecutor. If problem-solving strategies are to effectively take hold, therefore, the prosecutorial role must be reconceptualized and the institution of prosecution reconstituted to accommodate a wider range of attitudes and actions.

Getting beyond Superheroes versus Trojan Horses: Career Motivations of State Court Prosecutors

As part of a broader effort to reshape criminal justice, voters in some U.S. cities recently have elected more progressive prosecutors. While these campaigns promised a change in prosecution priorities, real transformation requires commitment not just from elected chief prosecutors but also from line prosecutors, the attorneys who handle the daily caseloads of the office. But their motivations, amenability to reform goals, and sense of professional identity may be at odds with the leadership and hard to gauge from the outside. To better understand this group of criminal justice professionals and their power to influence system reforms, we set out to learn what motivates state prosecutors to do their work. Using original interview data from more than 260 prosecutors in nine different offices, we identify four principal career motivations for working state prosecutors: reinforcing one’s core absolutist identity, gaining trial skills, performing a valuable public service, and sustaining a work-life balance. However, only two of these motivations – fulfilling one’s core identity and serving the public – are acceptable for applicants to voice in the hiring context, even in offices that employ a significant number of former defense attorneys. From this finding we offer a cautionary tale to job applicants as well as to office leaders, particularly in offices hoping to adopt a new vision of the prosecutor’s job.

Evidence Laundering in a Post-Herring World

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who receives the evidence, develops it further, and delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash. In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights. The expanded good faith doctrine that Herring embodies makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. Moreover, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world. As the exclusionary rule doctrine in the U.S. converges with its counterparts abroad, comparative work offers useful insights about future doctrinal developments and the likely effects of the transformed exclusionary rule.