Are Prosecutor’s Office Policies Legal?

By Mimi Coffey

Legislatures, representatives of the people, write the laws NOT prosecutors. Each law is a result of a complex process involving everything from public hearings, citizen and lobbyist input to sworn testimony. Penal code statutes have punishment ranges for a reason. Not everyone deserves to be treated the same when it comes to the same offense. Prosecutors are circumventing the laws by substituting their own punishment ranges in the form of “office policies” rather than considering the full range of punishments. District and County Attorney offices nationwide are resorting to cookie cutter approaches when handling cases by making plea bargain offers and trial decisions according to “office policies,” particularly when it comes to prosecuting driving while intoxicated cases. For example, assistant district attorneys are finding themselves hand-tied when handling DWI cases by such policies as:

1. Offering the maximum probation period for misdemeanor DWIsi or

2. No reductions (nonDWIs) on repeat DWIsii, breath or blood test cases allegedly over 0.08.iii

Inherent in an office policy is the disregard for the defendant’s particular circumstances such as lack of criminal history or specific facts mitigating a case (health issues, physical disabilities, etc.). The assistant district attorneys enforcing these office policies established by their superiors do so under direct orders without regard to the facts of a particular case. Yet, they are concerned more about their individual job security. Job security in the form of a paycheck is misguided. Lawyers must first concern themselves with their ability or license to practice law. This is predicated on following ethics and laws.

The Laws Governing Prosecutors

On a national level, the American Bar Association Standards for Criminal Justice Prosecution Function, Standard 3-1.2 (c)iv states, [*“the duty of the prosecutor is to seek justice, not merely convict.” This is buttressed by a prosecutor’s duty to be fair. According to Standard 3-1.2 (b)v,   “The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.” In Texas, it is codified in The Code of Criminal Procedure Art. 2.01…“It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.” The Texas Court of Criminal Appeals has aptly said, “the prosecutor is more than a mere advocate, but a fiduciary to fundamental principles of fairness.” Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989).vi   Fairness of course incorporates honesty. “Lawyers…owe…*a duty] of scrupulous honesty, forthrightness, and the highest degree of ethical conduct. Inherent in that high standard of conduct is compliance with both the spirit and express terms of established rules of conduct and procedure.” Matter of J.B.K., 931 S.W.2d 581, 583 (Tex. App.-El Paso 1996).vii   The United States Supreme Court said it best in Berger v. United States, 295 U.S. 78, 88 (1935),

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, and should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” viii

Just because prosecutors are not subject to the public scrutiny in the form of traditional attorney client relationships, does not make them immune from following ethical cannons. The preamble and the cannons do not depend upon which side of the bar the lawyer sits; prosecutors are not immune from the cannons of professional conduct. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex. Crim. App. 1990).ix   blatantly obvious to the wrongness of office policies is the disregard for each case’s uniqueness. This prevailing attitude is totally diametrical to the most important ethical cannon established by The National Prosecution Standards 68.2x Unique Circumstances. “The prosecution should be certain that all cases are determined individually and on their own unique facts and circumstances and not solely on the basis of a policy pertaining to the offense or the offender.”

The Definition of Office Policy

The practical reality is that office policies aim to categorize certain crimes and defendants into certain punishments or sentencing plans without regard first to their unique individual circumstances. It is common sense that the result is fundamentally wrong. One need not possess a law degree to understand that the law requires that each case requires individual consideration. However, in modern times this is exactly what has happened particularly with crimes that are politicized hot button issues. The fact these classifications of crimes may draw more scrutiny from prosecutors’ offices does not alleviate basic lawful and ethical care in the handling of such cases. If anything at all, these political hot button crimes should receive more careful attention lest the improper handling of them causes larger volumes of defendants to receive unfair treatment in a net approach.

“A process that accords no significance to relevant facts of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration…mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction.…” Woodson v. North Carolina, 428 U.S. 280, 304 (1976).xi

Most criminal cases are resolved through plea bargaining. This form of sentencing requires candor, honesty, true introspection for the particulars of each individual case for considerations of appropriate fairness. “[T]he opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances.” United State v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991).xii   The problem with office policies is basic. The defendant is not being heard but shepherded into varying corrals signifying various punishment approaches which satisfy political concerns from the elected prosecutor’s position. This is unethical. “Because the sentencing decision is a weighty responsibility, the defendant’s right to be heard must never be reduced to a formality.” Id. at 331.xiii   In order for there to be true arms length bargaining and full communication on each case, the prosecutor must be open to all possibilities in resolving the case. This is where the ugliness of office polices rears its head. In back courtrooms across the country discussions on DWIs go like this…

Defense Attorney: My client has a real good case. Look at the video, he clearly is not intoxicated.

Prosecutor: Sorry, I wish I could. It is his second, you know there is nothing I can do. Our office policy is that we have to try it as opposed to reduce the case.

Defense Attorney: Well can I at least bring you the witnesses so you can verify what happened and what will be presented on thewitness stand? Going to trial would be such a waste and unjust when you know he is not intoxicated.

Prosecutor: It won’t make a difference.

National Prosecution Standards 25.3. Cooperation to Assure Justice. “The prosecutor should cooperate with defense counsel at all stages of the criminal process to assure the attainment of justice and the most appropriate disposition of each case.” xiv   Not only do office policies on their face violate ethical cannons by refusing individual assessment as justice requires but it also exposes the prosecutor him/herself to additional unethical conduct by failing to cooperate with the defense lawyer in necessary actions regarding the investigation and evidence gathering portion of the case. Where office policies lump defendants into one classification of punishment (e.g. all first time DWI defendants receiving the maximum probation period regardless of their facts or circumstances) this directly violates the factors to consider outlined by the National Prosecution Standards, Factors for Determining Availability and Acceptance of Guilty Plea, 68.1 Factors to Consider.xv

“Prior to negotiating a plea agreement, the prosecution should consider the following factors: a. The nature of the

offense(s); b. The degree of the offense(s) charged; c. Any possible mitigating circumstances; d. The age,

background, and criminal history of the defendant; e. The attitude and mental state of the defendant at the time of the

crime, the time of the arrest, and the time of the plea discussion;…g. Undue hardship caused to the defendant;&hellip

;i. Aid to other prosecution goals through non-prosecution.”

Not only should hot button political crimes like DWI merit and demand individual attention but they also should not be excluded from alternative forms of disposition such as diversion programs as allowable under standard 68.1 i. The National Prosecution Standards said it best in their well reasoned commentary to plea bargaining,

“Reason dictates that the one person who can best evaluate the functioning of a system is the one who is closest to the individual

cases within that system. It is there, at the individual level, where all interests intertwine. It is there where the prosecutor must

consider the time, the manpower of the office, available financial resources, and the specific circumstances surrounding

the defendant and the alleged crime, that the prosecutor must determine whether or not to negotiate a guilty plea.” xvi

It only stands to reason that plea bargaining and evaluating a case is a hands-on job. It makes little sense that the parameters of a particular plea bargain are dictated by supervisors who have not looked at the case but simply dictated office policy. An assistant district attorney following office policy is liable for misjudgment or lack of judgment (attempting to lay blame on the supervisors who instituted the policy) as the Rules of Professional Conduct does not recognize a “Nuremberg defense.” This is recognized nationally in the American Bar Association’s Model Rules of Professional Conduct.xvii   In Texas, this is Rule 5.02 of the Texas Disciplinary Rules of Professional Conduct: “A lawyer is bound by these rules notwithstanding that the lawyer acted under the supervision of another person….” xviii   Just as grave is the supervisor’s liability for decisions made in pursuance of office policy despite their lack of direct involvement: “(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved.” xix

In Texas the rule providing no defense to the supervising lawyer is Texas Disciplinary Rules of Professional Conduct 5.02 comment 5. It is interesting to note that Texas makes it real clear that prosecutors are responsible for making sure that their cases are prosecuted for the right reasons. This directly conflicts with an office policy approach of “we would rather try it to a jury and lose” than reduce a case merely because it is a repeat offense otherwise reducible if it was a first offense. A prosecutor has a responsibility to “see that no person is threatened with or subjected to the rigors of criminal prosecution without good cause.” xx   Prosecuting a defendant in a manner inconsistent with justice constitutes misconduct. Justice is defined as what is fair, equitable and the right course of conduct. Office policies do not allow a prosecutor to follow through with recommendations and decisions that accord with what is individually fair, equitable and right for each particular case. Nationwide, misconduct includes “*engaging] in conduct that is prejudicial to the administration of justice.” xxi   The Texas prohibition is that a lawyer “shall not engage in conduct constituting obstruction of justice.” xxii

Assembly Line Justice

A defendant’s unique situation and therefore corollary right to be heard has been addressed by the federal courts. “Because the sentencing decision is a weighty responsibility, the defendant’s right to be heard must never be reduced to a formality. In an age of staggering crime rates and an overburdened justice system, courts must continue to be cautious to avoid the appearance of dispensing assembly-line justice.” Barnes, 948 F.2d at 331.xxiii   To try to pigeonhole a conglomeration of defendants charged with the same offense into the same punishment discounts unique facts and circumstances individual to each case. Douglas Berman, co-author of SENTENCING LAW AND POLICY: CASES, STATUTES, AND GUIDELINES (2004), said it best in a Yale Law Review article. “Absolute sentencing uniformity is not an achievable goal, nor should it be doggedly pursued without also striving to make our sentencing system humane and respectful to all the persons it affects.” xxiv   The United States Supreme Court, under 5th and 6th Amendment rationales, effected the same conclusion as argued in this paper when it held the U.S. Sentencing Guidelines advisory as opposed to mandatory. United States v. Booker, 375 F.3d 508 (7th Cir. 2004).xxv   As Marc Miller, author of Sentencing Equality Pathology, has noted under pre-Booker mandatory sentencing guidelines, “rote application of the Guidelines to two defendants charged with the same crime under very different background facts will produce only pathological forms of sentencing equality rather than any real sentencing equity.” xxvi   Eric Citron aptly argues that healthy discretion is essential in the production of justice.xxvii   The United States Supreme Court recognized, “There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.” Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).xxviii   Refusing to consider the uniqueness of individual cases and requiring similar sentencing under office policies no doubt is a form of institutional prosecutorial abuse. Douglas Bloom, a scholar for the Harvard Civil Rights-Civil Liberties Law Review, summatesxxix sentencing guidelines that essentially serve as a governmental office policy is violative of the 6th Amendment in United States v.Booker,xxx United States v. Fanfan,xxxi and Blakely v. Washington.xxxii   Although the 6th Amendment issues examined in the federal sentencing guidelines deal with judges and matters to be proved, the outcome is common on a basic level: individual facts and circumstances matter.

Emotive Due Process

The problem with office policies is that it turns all cases into cold, lifeless fact scenarios without regard to the human element. Samuel H. Pillsbury, a Professor of Law at Loyola Law School defines emotive due process as “the personal, emotional incentive to fully consider mitigating information that may be available.” xxxiii   Legal scholars of recent years have come to acknowledge that emotional influence cannot be separated or isolated from human decisions.xxxiv “[C]ourts and other legal bodies have long recognized the inadequacy of rule regulation to produce just decisions…. Moreover, with respect to decisions that depend upon complex and highly fact specific considerations, no rule drafter will be able to supply complete and reliable criteria for all future decisions.” xxxv   Mercy and compassion are important elements to sentencing in order to achieve just sentencing. The 7th Federal Circuit Court aptly stated: “The opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances.” Barnes, 948 F.2d at 328.xxxvi   One cannot assume fairness in sentencing without factoring in the most critical component that office policies are devoid of: compassion.xxxvii

The Idea Behind “Mandatory Minimums” Espoused by Office Policies

Current office policies seek to establish mandatory minimum punishments for all defendants charged with the same offense, particularly when it comes to DWIs. This is not a new concept; such are the previously mandated federal sentencing guidelines. What is the report card on the federal system? According to University of Chicago Law Professor Stephen Schulhofer, when congressional aims of deterring crime and ensuring just penalties are considered, “the alleged ill effects of mandatories are on the whole well-established and irrefutable, while the benefits of mandatories are both smaller than expected and almost entirely achievable by other means. There is now good reason to believe that in their overall effects, mandatories are not only unfair but also powerfully counterproductive. Conscientious crime control advocates should favor the repeal of mandatories.”xxxviii   In 1990, the Federal Courts Study Committee determined that mandatories “frustrate the normal and salutary process of pretrial settlements (pleas)” and create unanticipated inequities in many cases.xxxix   What is most telling when making final determinations as to whether or not the punishment fits the crime is the report card by judges and probation officers. The 1991 Sentencing Commission’s Report, Mandatory Minimum Penalties in the Federal Criminal Justice System, reported that of forty-eight judges interviewed by the Commission only two judges held favorable opinions of the minimum sentencing guidelines and out of sixty-six probation officers only five held favorable opinions.xl   One direct result of minimum office policies is that defendants unwilling to be treated unfairly will opt for trials, particularly in jurisdictions where juries can assess punishment. The practical cost to taxpayers of this versus highly skilled attorneys being able to plea bargain at arms length is impracticable.

The Legal Concerns

When viewed from a purely legal perspective, “office policies”  that discount facts and particularized circumstances violate the law on numerous grounds outside of those previously addressed. In Brown v. Mayle, 283 F.3d 1019, the Court declared that a prosecutor’s individual discretion must be used in assessing the applicability of California’s “Three Strikes” law because to avoid it could equate to the defendant’s punishment being disproportionate to the crime committed which violates the Constitution’s 8th Amendment’s “cruel and unusual punishment” prohibition clause. Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2001).xli   The 5th Amendment’s Equal Protection clause prohibits the exercise of prosecutorial discretion based on race, religion, or other arbitrary classifications such as exercise of free speech. One can argue that treating a whole classification of crime such as DWI, due to its political nature, differently without regard to the facts in each case, is an equal protection clause violation due to its political nature which should not deprive a citizen accused of fair treatment. This spills over into the illegality of selective prosecution as spelled out in Wayte v. United States, 470 U.S. 598 (1985), County v. State, 812 S.W.2d 303 (Tex. Crim. App. 1989), Oyler v. Boles, 368 U.S. 448 (1962), Falls v. Town of Dyer, 875 F.2d 146 (7th Cir. 1989).xlii   Selective prosecution, as defined by Castaneda v. Partida, 430 U.S. 482 (1977),xliii involves whether the individual is a member of the an “identifiable group” that is “a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.” xliv   Questions arise when DWI defendants are not availed of some of the same punishment options under the law as other defendants (e.g. length of probation). Prosecutors must be concerned that they do not violate a citizen accused’s due process rights. This is directly concerned with the manner in which a citizen is deprived of their liberty. Mabry v. Johnson, 467 U.S. 504, 511 (1984).xlv   Ultimately, if a defendant can establish that an alleged disciplinary rule violation affected his substantial rights or deprived him of a fair trial, he will be entitled to a reversal of his conviction and a new trial. House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997).xlvi   Even if the ethical violations do not rise to the level of deprivation of rights, it may have serious professional repercussions to the prosecutor personally. Brown v. State, 921 S.W.2d 227, 230 (Tex. Crim. App. 1996).xlvii   It is not wise for prosecutors to attempt to pigeonhole defendants into punishment or trial schemes that accord to “office policies” with little regard to nothing else. Not only does this deprive the system of due process, it does little for the public’s faith in the fair administration of justice. The principles of seeking justice are basic. A prosecutor need only put forth good faith and attentiveness in carrying out his or her duties. Taking this power away from the prosecutor seeking to do their complete job in the name of uniform “office policies” which deprives everyone in the system of respect for the judicial process is both wrong and shameful.



i Dallas and Tarrant Counties, Texas when offering probation: all first and second DWIs are offered as a matter of policy the maxiumum 2 year probation without regard to a defendant’s lack of criminal history.

ii Tarrant County (general policy excluding exceptional circumstances).

iii Tarrant County (general policy excluding exceptional circumstances).

iv ABA Standards for Criminal Justice Prosecution Function and Defense Function, Standard 3-1.2(c) The Function of the Prosecutor, p. 4 (3d ed. 1993).

v Id. at Standard 3-1.2(b).

vi Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989) (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

vii Matter of J.B.K., 931 S.W.2d 581, 583 (Tex. App.-El Paso 1996).

viii Berger v. United States, 295 U.S. 78, 88 (1935).

ix State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex. Crim. App. 1990).

x National Prosecution Standards, National District Attorneys Association, 68.2 Unique Circumstances, p. 193 (2d ed. 1991).

xi Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

xii United State v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991).

xiii Id. at 331.

xiv National Prosecution Standards, National District Attorneys Association, 25.3 Cooperation to Assure Justice, p.90 (2d ed. 1991).

xv Id. at 191-192.

xvi Id. at 197.

xvii American Bar Association’s Model Rules of Professional Conduct R. 5.2 (a).

xviii Texas Disciplinary Rules of Professional Conduct R. 5.02.

xix American Bar Association’s Model Rules of Professional Conduct R. 5.1 (c).

xx Texas Disciplinary Rules of Professional Conduct Rule R. 3.09 (a), comment 1.

xxi American Bar Association’s Model Rules of Professional Conduct R. 8.4(d).

xxii Texas Disciplinary Rules of Professional Conduct Rule R. 8.04 (a)(4).

xxiii Barnes, 948 F.2d at 331.

xxiv Douglas A. Berman, Reasoning Through Reasonableness, 115 Yale L.J. Pocket Part 142 (2006), p. 145.

xxv United States v. Booker, 375 F.3d 508 (7th Cir. 2004).

xxvi Marc L. Miller, Sentencing Equality Pathology, 54 Emory L.J. 271 (2005) as cited in Eric Citron, Sentencing Review: Judgment, Justice, and the Judiciary, 115 Yale L.J. Pocket Part 150, 153 (2006).

xxvii Eric Citron, Sentencing Review: Judgment, Justice, and the Judiciary, 115 Yale L.J. Pocket Part 150, 152 (2006).

xxviii Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).

xxix Douglas B. Bloom, United States v. Booker and United States v. Fanfan: The Tireless March of Apprendi and the Intracourt Battle to Save Sentencing Reform, 40 Harvard Civil Rights – Civil Liberties Law Review 539, 541-42 (2005).

xxx United States v. Booker, 125 S.Ct. 738 (2005).

xxxi United States v. Fanfan, 125 S.Ct. 738 (2002) consolidated with Booker.

xxxii Blakely v. Washington, 542 U.S. 296 (2004).

xxxiii Samuel H. Pillsbury, A Problem in Emotive Due Process: California’s Three Strikes Law, 6 Buffalo Criminal Law Review 483, 485 (2003).

xxxiv Id. at 490 (citing The Passions of Law (Susan Bandes ed. 2000); Ronald De Sousa, The Rationality of Emotion (1987); Robert C. Solomon, The Passions (1976)).

xxxv Id. at 493.

xxxvi Barnes, 948 F.2d at 328.

xxxvii Pillsbury, Emotive Due Process, supra at 506. As recognized in Pillsbury’s footnote 49: For an extended look at the emotion of compassion and its importance to moral reasoning, see Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (2001). See also Lawrence Blum, Compassion, in Explaining Emotions 507 (Amelie Oksenberg Rorty ed., 1980).

xxxviii Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest Law Review 199, 200 (1993).

xxxix Id. at 214 (citing FEDERAL COURTS STUDY COMMITTEE, REPORT, at 134 (Apr. 2, 1990)).


xli Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2001).

xlii Wayte v. United States, 470 U.S. 598 (1985), County v. State, 812 S.W.2d 303 (Tex. Crim. App. 1989), Oyler v. Boles, 368 U.S. 448 (1962), Falls v. Town of Dyer, 875 F.2d 146 (7th Cir. 1989).

xliii Castaneda v. Partida, 430 U.S. 482 (1977).

xliv Id. at 494 (see also Wayte, 470 U.S. at 631 n.10).

xlv Mabry v. Johnson, 467 U.S. 504, 511 (1984).

xlvi House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997).

xlvii Brown v. State, 921 S.W.2d 227, 230 (Tex. Crim. App. 1996).