On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Article 3 of this Declaration states, “Everyone has the right to life, liberty and security of person.” The right to security of person, therefore, was elevated to the most fundamental of all rights protected by the UN. In the UN charter, it is as important as life and liberty themselves.
This prominence echoes the teachings of psychologist Abraham Maslow. He listed safety as the second most basic human need, after physiological needs like air, water, and food. Once a person’s physical needs are satisfied, their need for safety takes precedence. This may mean safety from war, natural disaster, or crime. Maslow believed that the need for safety had to be met before progression to the next stage to occur. In other words, a person must be safe before they can have love, belonging, acceptance, or self-actualization.
A lot of good work is being done out there to protect our right to a clean environment. A lot of good people work hard to ensure that everyone has the right to marry. During election season, we agonize over the right to privacy, the right to bear arms, the right to protest, the right to choose, the right to affordable housing, and the right to equality. But without safety, we cannot enjoy any of these rights. Safety is the foundation of these rights.
In the criminal justice system, defense attorneys talk the most about rights. The right to a speedy trial, the right to a lawyer, the right to present a defense, the right to cross-examine, the right against self-incrimination. Courts have gone to great lengths in order to protect a defendant’s rights. They will throw out evidence that conclusively establishes guilt if that evidence was collected in violation of a defendant’s rights. Rights violations can lead to ethical sanctions, retrials, and even outright dismissal of criminal prosecutions. In the day-to-day work of a courtroom, it can sometimes feel like complaining about her client’s rights is a required part of the job of a criminal defense lawyer. Judges are often far more receptive to these arguments than they are to arguments about the rights of the community. The community, after all, is rarely in court watching.
But it is the prosecutor, not the defense attorney, who protects the community’s right to safety. And by protecting this right, she protects all of their other rights. She protects all other rights because these rights are based upon the right to safety, and are meaningless without safety. Despite the disparity in noise, we should not fool ourselves about the roles of the parties. Before there was an Equal Opportunity Commission, an Environmental Protection Agency, or an Office for Civil Rights, there were police and prosecutors. We came first. Once government provides the most basic protection from violence, it can do other things. And groups that protect rights do wonderful work, as do the rest of civil society, but they are dependent upon, and cannot exist without, protection from violence and death.
With this in mind, prosecutors should not be seduced by the narrative of defense attorneys as champions of the rights of the individual. The role of the defense attorney is clear: act in your client’s self-interest. It does not include “protect the rights of the individual against the tyranny of government power.” If “fighting tyranny” conflicted with a client’s self-interest, a defense attorney would be ethically obligated to do the latter. The prosecutor is the champion of the rights of the individual. Her work holds up all those other rights. They are predicated on what the prosecutor must provide: freedom from violence.