Sometimes we think a subject we visited previously deserves another mention or two. We have wondered about the constitutional principle of “separation of powers” with regard to public prosecutors, who are members of both the executive and judicial branches of government.
How, we have wondered, can that be?
It appears that the question simply isn’t asked. Or hasn’t been. Except around here.
In practical terms we note that in the UK, lawyers are not permitted to just do prosecution or just do defense. They must do both, periodically. This is very much unlike our own system in the US. True, there are prosecutors who segue from the prosecutor’s office to the defense side. But it’s generally never to return.
And here’s a follow on problem: judges are overwhelmingly selected from among the ones that stay, the ones that never leave the fold of the prosecutor “community”. So we have chronicled elsewhere.
We were also able to identify, in previous discussions, other aspects of this problem that wind up being deeply troubling.
First, we violate the separation of powers by allowing attorneys who are members of the executive branch represent that same branch in court both as executive branch prosecutors and as one of the officers of the court itself. Then, aggravating that problem, we overwhelmingly pick judges from among that same group of lawyers, judges who then talk about their job as “protecting the public”, which is flatly and dangerously wrong by any sensible interpretation.
It is a little surprising to us that arguments about this problem have apparently never been raised or addressed in an American court. Only by our increasingly unread blog.
Then again, our ideas for amending our constitution have not gone over well before. We see no reason to expect that this idea will catch on, or even generate any interest, either.
But that’s probably too bad. The fact that something has no popularity doesn’t mean it’s wrong. Just unpopular.