prudent prosecutor, The

Professor Luban has written that "[t]he practice of plea-bargaining is extremely troubling on both moral and political grounds."182 Professor Smith decides the role morality question against prosecutors in this symposium by concluding that it is unlikely that one can be a good person and a good prosecutor. Like other role morality theorists, she bases this conclusion on an exploration of the context of criminal lawyering and the institutional and cultural pressures that corrupt the good intentions of prosecutors.183

"We have nowhere else to stand but on our own two feet."184 Individuals must make their own judgments about the morality of their roles and the obligations they impose. Based on their moral commitments, they must decide whether to participate in the adversary system. Like all persons, prosecutors are not freed of the obligation to consider the morality of their role. Nor should those who accept the role discard their consciences. When "the law points to a result that violates their deeply help moral beliefs,"185 they may (or must) choose civil disobedience, with a corresponding penalty.

to know, one's intuitions about justice."186 In such circumstances, substantive moral theories illuminate individual moral choices.

Ethical prosecutors are bound to exercise their discretion in a manner that is consistent with seeking justice.187 Does this mean that prosecutors who possess a substantive theory of morality are best suited to develop good judgment for discretionary prosecutorial decisions?

No. Despite the claims of many writers that prosecutorial discretion includes moral judgment, there is no evidence that substantive moral judgment improves prosecutorial discretion.Indeed, allowing appeal to the variety of religious and philosophical substantive theories of justice available to prosecutors could undermine prosecutorial uniformity, expanding rather than contracting unfettered prosecutorial discretion. Conflicting substantive theories of morality are not likely to solve the problem of unreviewed and unreviewable prosecutorial discretion.

The same problem confronts those who recommend character as the basis of good legal judgment. In traditional philosophy, persons of character have a habit of good moral judgment. In legal ethics, Dean Kronman has argued that:

[T]he outstanding lawyer ... is not simply an accomplished technician but a person of prudence or practical wisdom as well. It is of course rewarding to become technically proficient in the law. But earlier generations of American lawyers conceived their highest goal to be the attainment of a wisdom that lies beyond technique - a wisdom about human beings and their tangled affairs that anyone who wishes to provide real deliberative counsel must possess. They understood this wisdom to be a trait of character that one acquires by becoming a person of good judgment, and not just an expert in the law.188

This ideal assumes a strong link between excellent legal work and character, for it "affirm[s] that a lawyer can achieve a level of real excellence in his work only by acquiring certain valued traits of character."189