When I was in my pupillage I witnessed an exchange between my pupil master and a Judge. My pupil master was prosecuting a sentence. The Judge asked him to identify the features of the offence that aggravated the sentence. My pupil master declined and instead indicated that he was in a position to identify those features which were capable of aggravating the sentence, whether they in fact aggravated the position was a matter for the Court. The Judge was bad tempered, he responded that “if Counsel was not prepared to help me by identifying which features did aggravate the sentence then you may as well sit down”. My pupil master resumed his seat.
I learnt many valuable lessons in pupillage, not the least of which were some of the best places for lunch near to each of the courts on circuit. The exchange above was one such valuable lesson. Sentence is a matter for the Court, not for the prosecution. The prosecution are not there to make sure that the Court passes the longest sentence they can achieve, they are there to make sure the Court passes the appropriate sentence based upon all the information properly available.
Listening to some prosecuting advocates recently I am beginning to wonder if something has changed. I very much appreciate that the prevalence of sentencing guidelines has slightly altered the dynamic. No longer is the prosecution advocate only to speak about sentence when spoken to about sentence. The advocate should bring the guidelines and guideline cases to the attention of the court, identifying the features of the offence that are capable of amounting to aggravating and mitigating features (albeit I still place emphasis on the capable of amounting to).
What I note is that so many prosecution advocates seem to consider it their job to get the sentence as high as possible. They strain every sinew to identify features that get the offence into the higher categories with submissions such as “two punches are a prolonged attack” and a single room of a domestic house given over to a cannabis farm amounts to an operation on an industrial scale.
It is almost as if they are conducting a barter in a market place. Start high and hope you get lucky or aim high and then settle when you get a bit knocked off. This is not the role of the advocate when sentencing. Persuading the court to pass a manifestly excessive sentence is not a plus, you have partly failed in your role if you allow the Judge to fall into error in this way.
We operate within an adversarial system yet with the caveat that the prosecution are not partial. If, as a prosecution advocate, you set out to try to persuade the Judge to impose the heaviest sentence you can get you are one step away from being the “win at all costs” prosecutor. And that brings us one step closer to the suppression of evidence and Manitowoc County.
Assistance to the Court on the application of the guidelines should be exactly that, not an opportunity to ratchet up the years. The approach of the prosecution advocate should be reasonable and proportionate, being neither desirous of a swingeing sentence nor unduly lenient.
You may be representing the prosecution but you are first and foremost an agent of justice. That may sound pompous. That may sound an unrealistic ideal. When it comes to sentence, it should be at the forefront of the mind of the prosecution advocate.