As Jonathan V. Last observed earlier today, the George Zimmerman trial illustrates the immense power and discretion afforded to state and federal prosecutors.
Society entrusts prosecutors with weapons sufficient to defend civic society from the threat of crime and mayhem, yet those same tools are capable to great destruction themselves. Whether one agrees with the Zimmerman verdict or not, these are fundamental questions of the rule of law, and of republican virtue.
While many have thought about these questions, none rival the thoughtfulness of Supreme Court Justice Robert Jackson. Before Jackson became one of the 20th century’s best-respected justices, he was the attorney general. And in 1940, he addressed the Second Annual Conference of U.S. Attorneys, a gathering of the nation’s federal prosecutors.
His speech stands today unrivaled as the most eloquent consideration of prosecutorial power and responsibility:
… There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.
… If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.
… The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
Whether or not the Justice Department ultimately decides to prosecute Zimmerman amid the current political storm, we can only hope that Attorney General Holder and his peerless prosecutors pause to re-read Justice Jackson’s speech, as they should before every prosecution.
It won’t be hard for them to find. The Justice Department keeps a copy of the original typescript on its web site.
