Lawyering in a Good Cause Can Go Bad and Threaten the Rule of Law

All over the United States, prosecutors make decisions daily about whom to charge, whether to drop charges, and/or to agree to defense requests to join in various motions for relief. The vast majority of those decisions go unnoticed, or when they are noticed, generate little controversy.

This is because prosecutors have enormous discretion, which has long been considered essential to ensuring fairness in the criminal justice system. Former Attorney General Robert Jackson put it this way, “This authority has been granted by people who really wanted…crime eliminated but also wanted our American traditions preserved.”

That is why the Pennsylvania Supreme Court’s stern rebuke to Philadelphia’s anti-death penalty district attorney, Larry Krasner, is so striking. In its June 16 ruling, the court insisted that going forward, any time Krasner’s office wants to drop charges, ask for a new trial, or provide other forms of relief under the state’s Post Conviction Relief Act, the Pennsylvania Attorney General needs to be notified and offered a chance to intervene before any relief is granted.

The court’s ruling dramatically curtails the power of DA Krasner to act on a whole range of cases, but most crucially in the most serious cases, including those that carry a death sentence. In the court’s view, Krasner’s philosophical commitment to an anti-racist, less-punitive criminal justice system led him and his office to cut corners and make questionable ethical judgments.

The Pennsylvania Supreme Court offers a caution that all lawyers, whether operating as government officials or in private practice, should heed. Whatever the court’s view of the merits of Krasner’s cause, the court insists that even lawyers fighting for a good cause can go too far.

And when they do, it may come at a high cost to that cause and to the rule of law itself. So, the rule of thumb should be: Play by the rules.

Sounds simple, but it is hard, especially when the stakes are great.

The cost in this case is that Dave Sunday, the pro-death-penalty, Republican AG, will now have the chance to oppose Krasner’s efforts to do what he can to redress the excessively harsh approach taken by his predecessor as Philadelphia DA. How successful he will be remains to be seen, but we now know that Sunday will have a forum to bring his views to bear and gum up the works when any court considers a concession to the defense made by Krasner.

From the first moments when Krasner sought the office of Philadelphia DA, he made clear that he had a policy agenda and intended to carry out his duties to advance it. He promised that he would change the DA’s Office practice of “resist(ing) exposing new evidence that might reveal that a conviction was made in error or through misconduct by police or prosecutors” and that he would ”seize every opportunity to expose evidence that might allow an innocent person to go free, no matter how many years have passed.”.

His reform agenda included “fully staffing the Conviction Review Unit with prosecutors whose character and proven history of protecting the innocent are clear, so that when a pattern of past misconduct is found, any similar cases can be reviewed. To prevent wrongful convictions in the future, Larry will ensure that all potentially exculpatory evidence is shared with the defense.”

And his campaign website made clear his cause lawyer commitment when it announced: “For 30 years, Larry has walked the walk for civil rights. He will keep walking the walk as District Attorney.”

Krasner did not change his tune once he became DA. For example, in February 2023 after Pennsylvania Governor Josh Shapiro announced his support for abolishing the death penalty,

Krasner called on the state’s attorney general to “adjust its support for death sentences” and stop “defending death sentences imposed in Philadelphia County and other PA counties, including in cases where the defendants have already served decades in prison.”

“My position on the state execution of human beings,” Krasner added, “has been consistent since 1984…” Then moving fully into his cause lawyering role, he said he would “join longtime opponents of state executions in strongly urging the Pennsylvania General Assembly and Pennsylvania Attorney General’s Office to evolve now and reform their attitudes toward capital punishment, as well.”

Cause lawyers, whatever their cause, seek to use their legal skills to advance a political end or to help a social movement. Usually, they operate outside of and against the state.

As Professor David Luban explains, “Cause lawyers are a nuisance to the state, and they mean to be a nuisance.” But he notes they “can work in government while retaining, in some important sense, their identity as cause lawyer….”

Luban points out that when cause lawyers serve in government, they may “have to defend government positions that they dislike or at least speak evasively about them in public for a….(and) that their obligations as government lawyers take precedence over their movement convictions.”

The Pennsylvania Supreme Court’s review of Krasner’s decisions to reopen old cases and make concessions to the defense in many cases suggests that he has not gotten those priorities quite right. It found that his decisions in those cases were often “not dictated by the record and law” but were instead “merely advocated for personal, political, ideological, policy, or other non-legal reasons….”

The result, the court observed, does not advance justice. To the contrary, “It facilitates injustice.”

The Court found that in the case before it, the case of Lavar Brown, who had been convicted of murder, Krasner’s decision to join the defendant in seeking relief under Pennsylvania’s Post Conviction Relief Act was “not reliable” and his office had “violated its duty of candor.” It had, in addition, “withheld material evidence from the court, opposed efforts by amici to gain access to this evidence, submitted a false stipulation of fact, misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed a required evidentiary hearing.”

Beyond that, four of the seven Pennsylvania Supreme Court Justices pointed out that since Krasner took office, he “has conceded relief in roughly 100 murder cases like the one at issue and “his office engaged in “numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings.”

Their decision amounts to a vote of no confidence and an ethics indictment of Krasner. In my view, his commitments are the right ones, and he should be applauded for bringing them to his service as Philadelphia DA.

But cutting corners and crossing ethical lines does not serve those commitments well. Doing so casts a shadow not only on him but also on all cause lawyers. And it is incompatible with the demands of the rule of law and constitutional democracy.

Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.