Easier to keep people out of prison as an ADA or PD Forum

[McAvoy]

I'm really interested in criminal law but I can't really decide what side I come down on. Per TLS conventional wisdom, interning as a 1L with a prosecutor is likely to seriously cut my potential to get work as a PD, so I need to figure this out sooner than later.

I'm working to set up a few informational interviews this summer with people on both sides, and I've been reading a lot of blogs for both sides, but I can't really find any straight answers for a pretty basic question: if one is a staunch advocate of keeping people out of prison for all but the most serious of violent crimes (granted it's a very crude way to put it, but that's the gist of my criminal law interest), from which side is it easier to keep people out of prison?

The answer is intuitively PD, but in my naive, 0L mind, I have the idea that it's easier to simply "not put people in prison" rather than "fight to keep people out of prison," if that makes sense.

Perhaps another way to phrase my question: generally speaking, how much is a prosecutor's discretion constrained or affected by the district/state political atmosphere? I would also be interested in how much a district's discretion is constrained by its state, as I'll be in a very liberal district that's in a very conservative and very murderous state (Austin/Travis County in Texas).

If these sound like a really stupid questions, that's why I'm asking you guys before asking people IRL. Appreciate any thoughts!

[worldtraveler]

I really don't think you can work as an ADA and pick and choose your cases or just choose not to prosecute no matter where you are. If this is what you really want you'd be better off as a PD or at a non-profit. If you want to stop the prosecutions run for public office.

[HRomanus]

I'm a 0L with no experience or research into any of this.

Aren't most prosecutors chosen via election?

For better or worse, prison is seen in the public eye as equivalent with justice for the "bad guys." I mean FFS, here in South Carolina the Republican Governor's Association is running a campaign ad attacking a gubernatorial candidate because he "defends criminals and not us" - in large part by succesfully reducing their sentences. Here's the ad: https://www.youtube.com/watch?v=nf0-KN5Ijkk

If that's the case, I can't see a prosecutor winning election on your platform or evaluating his assistant prosecutors highly when they aren't putting people in jail. You may be in a liberal district today, but I would hate to shoehorn yourself politically in that regard when your entire state disagrees with you.

[arklaw13]

The DA's office does get a huge amount of discretion, but basically all of it is going to lie with the supervisory attorneys and not the run of the mill ADA's. The supervisors are going to do what the DA tells them to, and nobody runs for DA unless they want to be governor. So I would say yeah, political climate is going to matter a lot.

ADA's start out doing misdemeanors and I doubt that the supervisors pay extremely close attention to how those cases are handled since there are so many of them, so you probably get a good amount of discretion there, but there's not really much of a potential for jail time anyway.

[BanjoCalhoun]

Some are elected, some are appointed (by elected politicians). For a long time there seemed to be a tough-on-crime, war-on-drugs mentality on the part of the public that's led to the current state of our criminal justice system. It seems that in some places the pendulum of public opinion is swinging the other way.
I've read an interview by Breet Bharara, US Attorney for the Southern District of NY, in which he said that he specifically tries to gauge whether job applicants seem overeager to put people in prison, because he only wants people who would be apprehensive toward seeking aggressive sentencing (can't remember where the article was or I'd post the link). Obviously this is anecdotal and I'm sure it varies with the jurisdiction and boss, but your concerns seem to be a valid reason to opt for the prosecution side from my inexpert perspective. Prosecutorial discretion is a hugely important part of the equation, but I suspect that entry level attorneys would have much less power in this than their bosses.

[McAvoy]

I really don't think you can work as an ADA and pick and choose your cases or just choose not to prosecute no matter where you are. If this is what you really want you'd be better off as a PD or at a non-profit. If you want to stop the prosecutions run for public office.

Yeah I didn't mean not prosecuting criminals that aren't seriously violent, period, just not putting them in prison. Bolded is my inkling, too, just wanted more perspective -- thanks.

Aren't most prosecutors chosen via election?

No, the district attorneys are typically chosen by election, but chumps like me would just be hired. ADA = Assistant District Attorney.

The DA's office does get a huge amount of discretion, but basically all of it is going to lie with the supervisory attorneys and not the run of the mill ADA's. The supervisors are going to do what the DA tells them to, and nobody runs for DA unless they want to be governor. So I would say yeah, political climate is going to matter a lot.

ADA's start out doing misdemeanors and I doubt that the supervisors pay extremely close attention to how those cases are handled since there are so many of them, so you probably get a good amount of discretion there, but there's not really much of a potential for jail time anyway.

Thanks for sharing.

[McAvoy]

Some are elected, some are appointed (by elected politicians). For a long time there seemed to be a tough-on-crime, war-on-drugs mentality on the part of the public that's led to the current state of our criminal justice system. It seems that in some places the pendulum of public opinion is swinging the other way.
I've read an interview by Breet Bharara, US Attorney for the Southern District of NY, in which he said that he specifically tries to gauge whether job applicants seem overeager to put people in prison, because he only wants people who would be apprehensive toward seeking aggressive sentencing (can't remember where the article was or I'd post the link). Obviously this is anecdotal and I'm sure it varies with the jurisdiction and boss, but your concerns seem to be a valid reason to opt for the prosecution side from my inexpert perspective. Prosecutorial discretion is a hugely important part of the equation, but I suspect that entry level attorneys would have much less power in this than their bosses.

Thanks for sharing, too!

Yeah, I would have to GTFO of Texas after school if I went the prosecution route.

[HRomanus]

Some are elected, some are appointed (by elected politicians). For a long time there seemed to be a tough-on-crime, war-on-drugs mentality on the part of the public that's led to the current state of our criminal justice system. It seems that in some places the pendulum of public opinion is swinging the other way.
I've read an interview by Breet Bharara, US Attorney for the Southern District of NY, in which he said that he specifically tries to gauge whether job applicants seem overeager to put people in prison, because he only wants people who would be apprehensive toward seeking aggressive sentencing (can't remember where the article was or I'd post the link). Obviously this is anecdotal and I'm sure it varies with the jurisdiction and boss, but your concerns seem to be a valid reason to opt for the prosecution side from my inexpert perspective. Prosecutorial discretion is a hugely important part of the equation, but I suspect that entry level attorneys would have much less power in this than their bosses.

Thanks for sharing, too!

Yeah, I would have to GTFO of Texas after school if I went the prosecution route.

Where are you going to law school?

[McAvoy]

Where are you going to law school?

UT (from OOS)

[sd5289]

NY (City) seems to be the exception in that ADA's tend to have some discretion as to how to handle their own cases, but the degree of that discretion depends on the case. If it's a small time fare beat and you're a 1st year, the supervisor probably isn't going to care if you ACD it. If it's big press case (think: celebrities, big time offenses that catch the public eye, etc.), then you'll definitely have a supervisor involved who may tell you to proceed when you don't want to.

My understanding of other areas though is even that's not true. If you were here in NYC I'd tell you that it sounds like you want to be a PD. Since you're not, my instinct is you definitely want to be a PD.

[McAvoy]

Agree with what everyone else has said about line prosecutors not having a lot of personal discretion. There will probably be office policies on charging and pleas and so on. And at the end of the day, while running up sentences for the sake of it is clearly a bad thing, as a prosecutor your job ultimately puts a lot of people behind bars. That's just how the system works right now. You may have discretion and there may be other options on the extremes, but a lot of that will boil down to less prison time, not none. If you're ideologically opposed to prison, prosecution is really unlikely to make you happy.

I am ideologically opposed to prison, to a point, but even if you say in bold is true, I could see living with myself being an advocate from the prosecution's side for less prison time and alternative punishments; better to have one PD-at-heart, skeptical-of-the-police kind of dude in a DA's office than none, in other words. I'm probably just irrationally trying to make an option where there is not one, though.

Thanks as well -- I appreciate your thoughts!

[Lord Randolph McDuff]

ADAs have 20 times the power of a PD.

[Lord Randolph McDuff]

NY (City) seems to be the exception in that ADA's tend to have some discretion as to how to handle their own cases, but the degree of that discretion depends on the case. If it's a small time fare beat and you're a 1st year, the supervisor probably isn't going to care if you ACD it. If it's big press case (think: celebrities, big time offenses that catch the public eye, etc.), then you'll definitely have a supervisor involved who may tell you to proceed when you don't want to.

My understanding of other areas though is even that's not true. If you were here in NYC I'd tell you that it sounds like you want to be a PD. Since you're not, my instinct is you definitely want to be a PD.

Bolded is true, but you need to realize that 99% of the cases are not high profile. So you basically do what you want.

[sd5289]

NY (City) seems to be the exception in that ADA's tend to have some discretion as to how to handle their own cases, but the degree of that discretion depends on the case. If it's a small time fare beat and you're a 1st year, the supervisor probably isn't going to care if you ACD it. If it's big press case (think: celebrities, big time offenses that catch the public eye, etc.), then you'll definitely have a supervisor involved who may tell you to proceed when you don't want to.

My understanding of other areas though is even that's not true. If you were here in NYC I'd tell you that it sounds like you want to be a PD. Since you're not, my instinct is you definitely want to be a PD.

Bolded is true, but you need to realize that 99% of the cases are not high profile. So you basically do what you want.

Definitely true.

[McAvoy]

Well, thanks everyone!

I have an SO whom I would prefer to stay with my first summer (in Austin), and Austin doesn't have a PD office. If I would intern as a 1L with the DA's Office, would that seriously undermine my chances to get into a PD office?

(There's a Death Penalty clinic I might try to get involved with at UT, too, if that helps to undo my evilness in the eyes of a PD office.)

[sd5289]

Dunno how the PD offices operate in TX but here, they'd definitely hold that against you.

I've never understood the rationale* as to why other than "lalalalalalalala we don't need people who've come at it from both sides!"

* realize this probably outs me, but I've seriously never understood this. I've known people who went to a DA's office, didn't like what they saw and wanted to switch, but got shut out by PD offices.

[McAvoy]

As for this:

better to have one PD-at-heart, skeptical-of-the-police kind of dude in a DA's office than none

believe me, plenty of prosecutors are plenty skeptical of the police. But honestly, the way you put this, it makes it sound like you'd think the other DAs are the enemy, which just seems like a bad position to be in at your job. It is possible to be a liberal and a prosecutor, but you will be working with plenty who aren't, and if you feel like you're there to make up for everyone else, that just seems like you're looking for problems.

Yeah, that's probably not an unfair analysis. I'm not terribly adversarial in nature and I have (good) conservative friends and what not, but I could definitely this happening.

And thanks for confirming, sd. That's such a weird practice.

The thing is the PD route and my college choice are not easy fits, not necessarily because of my debt load, which would be doable for a PD, but because it would be such a pain in the ass to get legit experience before graduating. Is small firm litigation + legal aid/volunteering for a few years a reasonable path to becoming a PD, or is it something you truly have to gun for the whole time, in your guys' experience?

[sd5289]

You should probably ask some students/graduates in your area that question. It's definitely super competitive here, and I might even hazard that it's more competitive than DA hiring listening to the interview processes from my 3L friends. I've basically gunned toward the DA's offices during law school (last summer, local, this summer, federal plus more than a few years' worth of WE along the same lines) with one defense-oriented clinic this past 2L year because the DA's offices here like seeing at least something showing you've looked at it from more than one angle, and I still won't relax until I have that offer in hand. That's with a guaranteed first round interview to the office I was at 1L summer. My PD friends have been straight gunning for PD-dom the entire time, and still some of them don't know whether they'll have a job. The one and only person I know to have successfully switched from DA to PD (starting with an in-house clinic that eventually led to a PD externship) definitely doesn't have a job.

[McAvoy]

You should probably ask some students/graduates in your area that question. It's definitely super competitive here, and I might even hazard that it's more competitive than DA hiring listening to the interview processes from my 3L friends. I've basically gunned toward the DA's offices during law school (last summer, local, this summer, federal plus more than a few years' worth of WE along the same lines) with one defense-oriented clinic this past 2L year because the DA's offices here like seeing at least something showing you've looked at it from more than one angle, and I still won't relax until I have that offer in hand. That's with a guaranteed first round interview to the office I was at 1L summer. My PD friends have been straight gunning for PD-dom the entire time, and still some of them don't know whether they'll have a job. The one and only person I know to have successfully switched from DA to PD (starting with an in-house clinic that eventually led to a PD externship) definitely doesn't have a job.

I will! Thanks a lot for your help, and best of luck in the job hunt.