WHAT DRIVES PROSECUTORS?

AN ESSAY

Cynicism explains motivations. As I have pointed out in many other essays, cynicism provides a realistic method to judge people’s intentions before they hurt you. Cynicism assumes that people, groups or organizations have only selfish motives in any transaction, and those selfish motives shed light on how they will act. In most logical discourse, it is not wise to assume because assumptions are “beliefs” with no grounding in actual knowledge. In other words, a cynic assumes: “He’s only doing it for the money” without knowing whether that is actually true. On the other hand, we make assumptions all the time because it is not always possible to acquire knowledge before making a judgment. And if we do not take a guiding approach to an issue, we lose focus and cohesion when we address it. To that extent, assumptions help direct us. We cautiously approach issues under a few reasonable assumptions. Then we assemble knowledge in an effort to put sensory “meat” on the assumptions. Sometimes we confirm our assumptions. Other times, we do not.

Cynicism equips us with realistic assumptions about human behavior. In our “real world,” commerce is all. Without commerce, people could not pay their rent, feed their children or heat their homes. Additionally, human beings are naturally acquisitive creatures. They like to compete with one another for limited resources and they like to win. Sigmund Freud observed that men “are not gentle creatures who want to be loved, and who at the most can defend themselves if attacked; they are, on the contrary, creatures among whose instinctual endowments is to be reckoned a powerful share of aggressiveness.” Civilization and its Discontents, p. 68. Commerce provides an excellent forum in which to give vent to these competitive impulses. Freud recognized as much when he wrote: “In abolishing private property we deprive the human love of aggression of one of its instruments.” Id. at 69. In this light, we understand why human beings strive, battle and jockey for money and land. They are naturally aggressive, and in the “race for success,” they have a chance to unleash their aggressions. In aggressive commerce, men have only one goal: To enrich themselves. The focus is selfish. They exploit others for personal gain. On man’s relationship with other men, Freud concurs. He says: “[Aggression] also manifests itself spontaneously and reveals man as a savage beast to whom consideration towards his own kind is something alien.” Id. In short, commerce provides a “civilized substitute” for man’s natural inclination to aggressively conquer others.

Cynical values echo Freud’s assessment. When confronting any commercial situation, a cynic assumes that a person has only one motivation: To enrich himself by whatever means possible, even if it requires gross unfairness or even violence. The law exerts a partial check on commercial aggressiveness by threatening punishment for certain “excessive” measures intended to win profits. But cynics assume that commercial men will do anything that the law does not forbid. After all, it would be costlier to break the law and go to prison—even if it brings in a marginal profit—than to comply with the law and face no additional costs. After all, the focus is selfish. If violating the law results in greater loss than gain, then it makes sense to comply: You can’t enjoy your money if you are sitting in prison. In either event, cynicism explains commercial behavior. And in either event, principle has nothing to do with it: The question is merely whether an action brings maximal profit for minimal personal risk.

Cynicism applies when analyzing any commercial activity, including law practice. Even common laymen know that “lawyers are all about the money.” There is a sort of “popular cynicism” about lawyers. Colloquially, people talk about “lawyer-liars” who say anything to get paid. They call 500 lawyers on the bottom of the sea “a good start.” And they talk about getting “fucked over” by their lawyers, as if that is what lawyers naturally do. But there is nothing unique about lawyers; they are simply men in commerce venting their naturally aggressive instinct for profit. To win, they resort to any methods, as long as those methods do not greatly diminish the value of victory.

Yet there is a conceptual problem with lawyers’ commercial aspirations. After all, lawyers supposedly embody the law, which most people think should rise above mere commercial gain. In popular understanding, the law is more majestic than commerce. It stands for “justice, truth, fairness and equality” under neutral, reasonable rules that apply to everyone. This is very different from commerce, in which money and property determine status and power, not abstract rules. Theoretically, everyone is equal before the law. That is thematically appealing. And that is why there is tension between a lawyer’s craft and his commercial inclinations.

Sadly, law finds a happy place in commerce. Despite the theoretical contrast between noble legal principles and self-serving commercial hungers, law and commerce go hand in hand. Commercial men make the laws by influencing legislation. Even English common law judges gave voice to “sensible, commercial concerns” in their classic commercial rulings. Lawyers fit right into this “commercialized” legal climate. The law not only serves commerce in theory, but it is also commercially valuable to practice law. To that extent, cynicism easily unravels lawyers’ motivations. Like other commercial men, they are out for themselves. They may say that they “represent clients” in order to “solve their legal worries.” But a cynic penetrates all such pretense. He knows bullshit when he smells it. Most lawyers simply want to know how much money they have billed at month’s end, not how many “client worries” they have allayed. A cynic assumes that lawyers tailor their behavior for personal gain. And because lawyers are essentially commercial actors, this is a reasonable assumption.

But there is a perplexing exception here. While most lawyers merely ply their trade for personal profit, there are some lawyers who fanatically pursue cases for no reward at all: Prosecutors. Prosecutors are State actors. They do not bill fees, nor do they represent wealthy private clients. They defend public ideals by punishing “wrongdoing” and providing “justice” to victims. One may rightly ask: “What do they gain for themselves?” So far, we have seen that lawyers only truly act in their own interest. Do prosecutors, then, represent a “cynical exception” from the usual commercial assumptions about lawyers? What drives a prosecutor? It cannot be monetary gain. They receive a flat salary from the government no matter how many clients they handle. In many cases, they prosecute impecunious individuals for activities that have no commercial value at all. While a private personal injury attorney stands to gain from suing a person for negligently running over an old woman in a crosswalk, a public prosecutor stands to gain nothing from criminally prosecuting the same person for the same conduct. Something else motivates the prosecutor. It is not personal money profit.

Our analysis does not end here. If money does not answer a cynic’s questions, other things can. After all, a cynic assumes that all human motivations are selfish. In most cases, monetary gain is the most basic “selfish end.” But is not the only one. Sometimes people seek sexual pleasure from others. That is a selfish end even if it does not involve money. When a cynic observes a man flirting with a woman at a bar, he does not explain the behavior by reference to financial gain; he explains the behavior by reference to sex. In both cases, selfish gain motivates the behavior; the difference lies in the form of gain.

This helps us understand what motivates prosecutors. Neither money nor sexual satisfaction drives a prosecutor to zealously pursue economically worthless legal cases. What is it, then? I would venture that a heightened, judgmental moral sense drives prosecutors. By pursuing “criminals,” prosecutors feel that they are “doing right.” They have so much moral conviction that they willingly invest countless hours fighting to imprison “bad people.” This may sound noble, but I actually find it a little disturbing. After all, it implies that a prosecutor knows—with absolute certainty—what is “right;” and it also implies that he is willing to go to any legal length to prove it. That requires singular, unswerving moral focus. Prosecutors can have no doubt. They cannot equivocate. They must label their targets “wrongdoers” and muster every argument and every proof against them. While we can all agree that dangerous killers, rapists and robbers “do wrong,” what about hobos, drunkards, innocent trespassers and people who forget to pay for something in their grocery cart? How about a man who unknowingly violates the speed limit? Or some guy who gets caught playing with himself in a public toilet? Do we have the dogged moral clarity to declare that these people are “wrongdoers” who deserve criminal sanction? Do we have the courage to invest countless hours proving these “crimes” and rhetorically lambasting their “perpetrators?” I know I don’t. Yet as a cynic, I have an explanation for prosecutors who do: They get a euphoric, righteous charge from using the law to punish so-called “lawbreakers” because it vindicates hypersensitive, personal moral convictions. This is personal gain. If prosecutors feel inwardly good about sending an indiscreet masturbator to prison for 15 years, they have acted to fulfill their own personal desires. They have acted for personal gain, even if they do not receive a nickel for it.

This may seem a bit abstract. But there are other, more pragmatically cynical explanations for prosecutors’ motivations. Prosecutors are well-known public officials. They are executive officers. As such, they receive both praise and criticism for exercising their political powers. While the law embodies principles, political power knows only expediency. This places prosecutors in an awkward position. After all, they do not prosecute every single legal violation. It would be neither fair nor practical to do so. In principle, they should prosecute every violation in order to show that the law never flinches when someone violates it. But they only prosecute crimes when they feel it would have some collateral effect beyond the defendant. This lends itself to numerous selfish motivations, including: the desire to win re-election; the desire to appear “tough on crime” in order to seek higher political office; and the desire to curry favor with more influential political figures. Quite simply, prosecutors charge crimes in order to advance their own careers. Perhaps one day a prosecutor hopes to take a high-paying job as corporate counsel. To fulfill his ambition, he waits to prosecute “high-profile” cases so he can use them as bargaining tools in his employment hunt. Perhaps a prosecutor may wish to make a person’s life difficult because he does not like him. That may sound petty, but it is still a plausible, selfish motivation for selectively prosecuting a crime. If an action appears to bring some benefit to the actor, a cynic rules nothing out. Prosecutors have immense power; and they have many opportunities to benefit themselves by using it. In such circumstances, cynical analysis applies.

In sum, prosecutors appear to represent an exception to the usual cynicism surrounding lawyers’ motivations. After all, private lawyers are unashamed commercial actors who have little desire beyond winning money, while prosecutors are public officials who stand to win no money from their legal successes. But upon closer inspection, we see that prosecutors, too, have selfish motives. They prosecute crimes not just to “serve the public” or “protect justice,” but also to placate innately hypersensitive moral sensibilities and to advance their own careers. These are personal motives. As such, they fit nicely within the cynical analytic framework. Lawyers and prosecutors may truly have selfless motives. But cynicism protects us from disappointment by reference to common experience: All too often we find out that superficially noble actions are mere ploys for personal gain. That holds as much for lawyers as it does for prosecutors, even if they measure personal gain in different terms.