We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.
Separation of Powers, anyone?
Ugh. This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors. That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.
But couldn’t we at least do a little damage control, just a little half measure that might mitigate the damage from the thorny separation of powers problem we just identified, and that might not run afoul of the political scientist’s slavish devotion to the oxymoronic “principle of utility“? (But see an entertaining send up of Bentham, et al.)
Accordingly, we propose the following should be added to New York’s constitution in the section on the judiciary:
“Any attorney who has served in the office of a District Attorney or the Attorney General shall be disqualified from holding any judicial office for a period of ten (10) years after the completion of any such service.”
It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio. It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.
And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold: that is, former prosecutors completely dominate the judicial branch. This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.