Too Much Hart

Three years into my job as a prosecutor, I still feel shockingly ignorant about the big picture of criminal law.  I don’t mean the nuts and bolts of doing trials, I’ve figured that out, and I don’t mean criminal procedure and evidence, I’m doing fine there.  What are they saying about the purposes of criminal law?  What are they saying about the fundamentals?

To answer these questions, I’ve been reading The Aims of the Criminal Law by professor Henry Hart.  Written as “a revision of a mimeographed note” in 1958, professor Hart formulates the basic purposes of criminal law for the layman.  (HartThe Aims of Criminal Law, 23 Law & Contemp. Probs. 401 (Summer 1958).)  It was “originally prepared for first-year law students to serve as a supplement to other materials.”  Professor Hart describes it as “being elementary” and ” not attempting a comprehensive examination of competing views of the criminal law.”  (Ibid.)

Hart was from Butte Montana, a mining town.  He left to get his undergraduate degree at Harvard in the 1920s, when the town was almost completely owned by the Anaconda Mining Company.  He attended Harvard as an undergraduate and a law student, where he was president of the Harvard Law Review.  In the 1930s he even received two post-law school degrees, an L.L.M. which I’ve heard of and S.J.D which I have not.  That gave him three Harvard law degrees, making him the most Harvard-y person I’ve ever read about.  Hart was a fixture at the law school until his death in 1964, just 6 years after publishing this article.   The text became famous: enough people have read it to publish a book of reactions to it.  The book appears when you look through Amazon’s criminology section.  That’s how I first learned of the article, which I found with google.

Hart looks at the aims of criminal law from the perspective of each of the institutions involved.  I’m slowly reading the article, but I couldn’t help but skip ahead to the section discussion prosecutors, who are lumped in by Hart with the police.  Hart has a startlingly negative view of prosecutors, to say the least.

Hart starts by noting that prosecutors and police “have a lesser role” than others, but nevertheless, we should understand them in order to “better control their activities” and to educate the legislature about “what responsibilities ought to be given them and of the consequences of unwise imposition of responsibility.”  (Ibid a p. 428.)  Specifically, Hart worries about prosecutorial discretion, because it is “far greater than that trusted to any other kind of official.”  This discretion, he says, leads to unequal enforcement of the law, as prosecutors choose who to prosecute and who to pass over.  This transfers “from the legislature to enforcement officials the de facto power of determining that the criminal law in action shall be.”  (Id.)

Prosecutors should be confined to prosecuting truly serious crimes, which he calls “securing compliance with […] the basic obligations of responsible citizenship.”  By prosecuting only serious crimes, the prosecutor’s “discretion will tend to be reduced o the minimum which the necessities of the administration of law admit.”  In other words, the prosecutor should only prosecute crimes that are so serious that there can be no reasonable disagreement over whether they warrant prosecution.  Any prosecutor who takes her job seriously must prosecute these types of crimes.  The absence of choice in this way is the absence of discretion.  Hart suggests that the proper role of discretion is to make judgments “concerning the sufficiency of the evidence to warrant further investigation or formal accusation, what charges to make, what pleas to accept, what penalties to ask for, and the like.”  (Id.)

Having now warmed up to his theme by arguing that prosecutors have usurped the power of the legislature, and that their broad discretion should be reduced to a minimum, Hart brings out the big guns.  “The stupidity and injustice of the thoughtless multiplication of minor crimes receives its most impressive demonstration in police stations and prosecutor’s offices.” (Id.)  Prosecutors, faced with limited resources, cannot prosecute everyone who commits a crime.  This renders the legislature’s enactments futile, Hart complains.  Sporadic enforcement, which is how Hart describes the state of things, “has an inescapable residuum of injustice” and entails “unprincipled discretion.”  (Id. at p. 429.)

It gets worse.  The prosecutor is likely to prosecute those she sees as morally blameworthy.  This despite the fact that Hart thinks the legislature intended that all violators be prosecuted regardless of blameworthiness.  This creates blameworthiness as an additional element of the crime.  Yet this cannot be disproven by the defendant, according to Hart.

I haven’t finished the article, but on first blush, it seems that Hart deeply misunderstands the role of prosecutorial discretion.  He clearly favors a system in which the prosecutor’s discretion is reduced to a minimum.  But in such a system, every violation of the law, no matter how technical, is prosecuted.  We could never afford to follow Hart’s advice, of course, since 95% of our cases are not tried but resolved by plea bargain, and prosecution of every guilty person to the exact letter of the law would require in the area of 20 times more prosecutors.  Even if it were administratively feasible, it would not be desirable.  Prosecutorial discretion is used to give victims and defendants a case-by-case look at the requirements of justice.  If a pimp and a prostitute are arrested, it is prosecutorial discretion that allows us to treat the prostitute as a human trafficking victim rather than a criminal.  When an undocumented immigrant commits a minor crime, prosecutors exercise their discretion to charge crimes that will not lead to deportation.  Diversion programs, which are extremely popular today for everyone from drug addicts to veterans and first-time offenders, are an exercise of prosecutorial discretion.  Perhaps Hart thinks we should prosecute a drug addicted veteran with no record that commits a minor crime.  After all, he says the legislature intended that “all violators should be prosecuted, regardless of moral blame.”  (Id. at p. 429.)  Apparently Hart believes that the legislature is unaware of prosecutorial discretion.  Perhaps he thinks they are unaware of the executive branch altogether.  But there are situations where prosecuting everyone regardless of moral blame is not what our communities want.  It would be unjust.

Luckily, Professor Hart was not given discretion to implement his ideas about the role of prosecutors.


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