Volunteer Prosecutors

I recently had coffee with a former student who told me this story about her post-graduate employment.  She worked at a local DA’s office for a few months as a post-bar clerk, then as a volunteer. She had to live at home and go on MediCal (California’s low-income medical program).  While a volunteer she basically had all the responsibility of a paid employee, including cases that were “hers”—except she wasn’t necessarily expected to work a full 40 hours. I have another student who got hired at a local DA’s office after “volunteering” with no pay for an entire year. Another of my former students had three jury trials as a volunteer. Some counties do pay either a stipend or an hourly rate, but even then the volunteer DA’s employment status is like that of contractors, with no benefits.

I found this troubling. When I asked some other criminal law professors around the country if they were aware of anything similar in their jurisdictions, many of them had. Here, for example, is New York’s program, and here is an Above the Law post on a federal program.  Young lawyers, many with significant educational debt, doing prosecutions for no money.

How is this legal? The Fair Labor Standards Act does not govern internships in the traditional “learned professions,” which includes ”lawyers, doctors, dentists, teachers, architects, [and] clergy,” as well as “other employees who perform work requiring ‘advanced knowledge’ similar to that historically associated with the traditional learned professions.” To qualify as an internship, a position must meet 6 criteria, including that the training is similar that “which would be given in an educational environment,” that it be “for the benefit of the intern,” that the “intern does not displace regular employees,” that the “employer that provides the training derives no immediate advantage from the activities of the intern”, that the “intern is not necessarily entitled to a job at the conclusion of the internship,” and that both the employer and the intern “understand that the intern is not entitled to wages for the time spent in the internship.” On its face, I think there’s a decent argument to be made that DA’s offices derive some “immediate advantage” from “volunteers”, but it would be a hard slog to sue a bunch of prosecutors over a FLSA violation.

My main problem with volunteer prosecutors is that these opportunities are limited to those with other means of supporting themselves. I think we need people from all walks of life as prosecutors, not just rich kids.  The Stanford Criminal Justice Center recently released a study about how white prosecutors in California are; given the income distribution along racial lines, I wonder if these are linked (though I won’t assert that they are).  I certainly don’t think reverse-means-testing applicants in this way will help with racial and ethnic diversity in California or anywhere else.

As for the argument that that volunteering as a prosecutor is similar to other kinds of pro bono work, criminals are treated quite differently in the law, and the stigma and deprivation of liberty attached to criminal convictions is different as well.  I think that makes a difference: criminal records are much more durable, all the protections of criminal procedure have to do with the power of the state, etc.  To me, it’s qualitatively different from other kinds of pro bono work. The job of a DA is to do justice for society—the DA’s client is, literally, the people. I think the potential for a fresh graduate of law school without permanent employment to overreach simply to impress her bosses with a “win” is probably overwhelming. I can’t see someone in a volunteer position saying “Let’s not prosecute this case.” I’d expect her to go to the mat every time. That’s sometimes a good thing, but not always.

Some might also argue that volunteers allow society to prosecute more people. In my view, limited prosecutions due to budgetary constraints is a feature, not a bug.  We have the most people under correctional supervision of any society in human history.  I think resource constraints might help rein in mass incarceration.  Like global warming, I think the idea that we’re in a period of mass incarceration (waning somewhat, particularly in California, but still alive and well) is indisputable.  We can just argue about the causes/solutions.

I understand that for an individual it might make sense. It’s good training and experience. I feel differently about internships during school, since student loans can help cover the cost of housing, food, and other necessities. But going on MediCal and deeply into debt is a precarious way to start your career, and yet given the relative strength of employers and employees in this legal labor market, some DA’s offices will get free labor because they can. I think that if you have a bar-certified lawyer prosecuting someone, you should pay her to do it. If you can’t pay her, then prioritize your cases and live within your means.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

23 thoughts on “Volunteer Prosecutors”

  1. The unpaid internship has grown as a structure in many fields, including journalism, IT and banking. It functions well to keep people who don't have well-heeled parents out of many lines of work. As California goes to a $15 minimum wage, I expect we will see much more of this practice.

  2. On "How is this legal"–I think the FLSA applies only to for-profits; you can volunteer (not intern) for government agencies pretty much without limit. (Think of all the volunteers who pick up trash on a section of road, or maintain some part of a public park, or work as firefighters.)

  3. I am terrified to think what happens if there is any evidence of prosecutorial malfeasance or misconduct. Albeit a volunteer who left some time ago sure makes a good scapegoat.

    1. Good point–and not an angle I'd thought of. With students who have not passed the bar, there is a supervisor who is the lawyer of record on all decisions, but with volunteers who have passed the bar, they are the lawyers of record.

  4. There are a host of issues surrounding legal jobs and the justice system. One of the main ones, and most damaging, is the greater "prestige" associated with being a prosecutor than a PD (among our more gullible citizens). Lawyers who really want to go into politics find the DA's office more appealing. And this distorts the judiciary as well. I think it should be a rule that any judge has to have worked both sides – significant time spent – to sit in a criminal court. I know some already do both, but it should be *all* of them. No excuses. And I don't know if any crim experience is required, come to think of it. There are probably funding differences as well.

    Then there is the drug war. I know at least one person who didn't even think of applying to the DA's office because of it, and this distorts our system as well. What are the chances you'll be free to follow your conscience, especially as a new person?

    I've been asked my views on capital punishment in job interviews. I'm a good sport, I answer. But this question should not be asked, imo.

    As for your worries about internships being bad for society, since they further entrench inequality, you are completely right, and I predict that nothing much will ever be done about it.

  5. I can only speak to my own experiences, but my time as a volunteer prosecutor was time well spent. There were a lot of things that I did not anticipate about law school: (1) That I would graduate in the midst of a huge recession; (2) That I would be bad at the 3 hour issue spotting final exams that made up 100% of my 1L grades (which are how hiring decisions at many firms and agencies are made); and (3) that as a result of (1) and (2), I would be left staring down $120,000 in debt without a job and without any actual legal skills (because a law degree ain't that).

    My lifeline came in the form of a three month postbar clerkship that evolved into a volunteer attorney position once I received my bar results. My family – which tends to wear its heels down, thank you very much – was gracious enough to provide me with room and board, and between a small stipend that they were able to provide and the exhaustion of my own small savings, I was able to afford it . . . barely.

    All told, I stayed on as a volunteer prosecutor for approximately six months. In that time, I conducted six jury trials, and was given as much responsibility as any paid member of that office. That may scare you, but the reality of our criminal justice system is that low-level misdemeanors are prosecuted and defended by people without much experience. It is, after all, difficult to gain experience without experiencing anything, whether or not one is being paid. And contrary to this author's assertions, inexperienced misdemeanor attorneys are generally supervised by more experienced attorneys, just as more experienced attorneys are in turn supervised by management.

    Did it affect my job performance? Absolutely. I came in much earlier and stayed much later than I have in years. I took cases home with me at night and on the weekends. I worked really freakin' hard. I was absolutely terrified that I was unemployable. That is a daunting feeling, and it unfortunately did not go away when I was eventually hired by another office. At that point, rather than competing for a job, I was working just as hard to ensure that I passed my year long probationary period. But in both instances, I was fortunate to work for offices that valued aggressive but ethical prosecution. In both offices, when I reviewed cases and determined that we either couldn't prove a case or shouldn't go forward with it because of the intangibles, my supervisors backed me as long as I could explain myself.

    In sum, I got a lot more out of that internship than the DA's office did. And while the author may encourage starving the beast, the truth is that filing deputies do not consider the availability of free labor when they make charging decisions. As anyone who has worked as a misdemeanor attorney knows, you are always dealing in high volume. A few more cases per attorney doesn't really matter.

    1. Maybe a better solution would be to build a system in which those who have passed the bar aren't terrified that they're unemployable.

      1. That would be lovely. Unfortunately, there are two structural factors at work against this. The first is economic: There are more new lawyers than the market will bear, and this is especially true when it comes to public service. Competition for district attorney and public defender jobs is especially fierce. At my own office, which is small, remote, and poorly paying, we had approximately eighty applicants during our latest hiring cycle. (And one of the ones that we took was working as a volunteer attorney. We didn't even interview people who didn't have any relevant experience.)

        The second is inherent to the way that law schools operate. Rather than acknowledging that law is a trade by teaching the nuts and bolts of civil and criminal practice and focusing on the laws of the state in which the school is located, most schools (and especially those that do well in the US News rankings) waste students' time philosophizing about how many Supreme Court justices can fit on the head of a pin. Few practical classes are offered, and the (adjunct) instructors for these are rarely able to receive tenure-track positions. Why? Although many of them are great trial lawyers, lack the prerequisites of a prestigious school and a prestigious judicial clerkship.

        So I agree that this would be nice, but absent significant changes to both the legal labor market and the way that law schools work, I just don't see it happening. Until then, graduates need to have a way to gain experience to make themselves marketable.

        1. Interesting story! I know exactly what you mean about law school and the legal field.

          What did you think about the whole switching sides thing? I think it's kind of important, perhaps the more so because I think which side someone picks *seems* to me to be tied up with a lot of important ideas about one's identity and view of the world… and some prosecuting friends I've asked really can't explain why they picked that side and not the other … which are really integral to the practice/creation of justice.

          People in crim tell me that in fact people do switch sides a lot and that you just don't hear about it. But I've never seen stats.

          1. I think that you are right – I do see a lot of investment in identity on both sides of the coin, but I can't say that I have switched sides, aside from a very brief foray into a firm where I was the resident criminal law guy because of my "vast" experience working for free. As a thought experiment, I think it's a great idea to have a system in which today's prosecutor is tomorrow's defense attorney. In fact, to the best of my knowledge, certain countries and (at least so I understand) some branches of our military simply have criminal attorneys who are assigned to defense and prosecution on a case-by-case basis. Here, it might pose some difficulties because of our very stringent conflict rules.

            Within my own small legal community, going back and forth has been historically fairly common. Probably the most common change though is for a deputy DA to go into private practice doing criminal defense. Sometimes this is monetary, and sometimes it is as a result of internal politics at the DA's office. I can't say that I've seen too many deputy DAs switch because of some sort of moral crisis.

            As for my own decision, I can say that I was on the knife's edge when I graduated from law school. To this day, I would have no problem defending people accused of most crimes. UItimately though, I decided to become a prosecutor because I simply didn't want to spend my life defending child molesters and murderers. While I could have happily accepted those assignments with some sort of guarantee that I would only defend the innocent, that is an unrealistic expectation for a public defender to take into the job.

          2. The system just told me my comment was eaten by the administrator? I sure don't want to type it again! It's not that earthshattering. Is this bc I'm using a gizmo and not a desktop?

          3. You know what? I just realized, re-reading your comment. We were both afraid. Afraid of being put in a position of having to do something unjust. Well, the solution to that is (usually) more information. People at these agencies should visit law schools and just tell people what the deal is. Or I guess they don't have to since they're buried under applicants, but… right now, these applicants are skewed, politically,right? And shouldn't we think this is wrong?

          4. If by skewed you mean that aspiring prosecutors trend right of aspiring public defenders, that is probably true but it is by no means universal. Many prosecutors, including myself and both of my good friends from law school who are also prosecutors, are at least marginally liberal, and the most conservative attorney in my county works in private criminal defense. People is people.

        2. My comment was meant partially tongue in cheek, but only partially. What you describe isn't that different from a number of other fields, but the solution is not to require people to receive no pay for the work they do. Not for lawyers, not for journalists, and not for anyone else. If law firms don't like the skills they find among law school graduates, they should have two choices: pay junior employees as they teach them job skills, or to start hiring from law schools that do prepare their students properly. They should not have the option of having volunteers come in and do their work for them with no pay.

          1. Law firms do exactly what your propose. My colleagues who had better 1L grades generally obtained highly paid summer internships for the following year that translated to highly paid postbar clerkships after graduation. Then, after passing the bar, these clerkships transformed into highly paid positions as associate attorneys. (The going rate when I graduated was $160,000 per year in major markets.) At the same time, these associate attorneys bring little value into the firm, inasmuch as they require close supervision and at least some of their work is "written off" by the senior associates and partners that they work for.

            DA and PD offices don't have that luxury. By and large, their staffing levels are set by the Board of Supervisors, and they are governed by civil service rules – meaning that their employees are not at will once they pass probation (San Francisco is an exception), and their hiring processes are governed by very formalized rules. This means that they may have several attractive candidates but no available positions. Often volunteer attorney positions are a stopgap until the agency is able to open up an extra help position or start another hiring cycle. And I should note that there is absolutely no requirement that one volunteers. Many applicants do get hired with no volunteer experience. But often volunteer attorneys are spending their free time searching for paid positions. I know I did. And it was far better to walk into interviews with a number of jury trials under my belt than it would have been while working part time at Starbucks (although the benefits would have been nice).

            And while I would certainly have preferred my criminal law class to focus more on how the criminal justice system actually works (I learned what an arraignment was during a summer clerkship) and less on the synthesis of criminal law and transgender law, this is going to be a hard sell. Employers – even public agencies – like hiring graduates from prestigious schools. Prestigious schools in turn like hiring professors who don't sully themselves practicing law for any length of time. And professors with little relevant practical experience cannot speak meaningfully about how to actually be a lawyer. Obviously, these are gross generalizations, but they generally fit with my experiences. So until employers start choosing graduates of non-ABA accredited law schools, which generally use practitioners to teach their classes, I don't see this changing. But you're right; it should.

          2. It sounds as if some successful practising lawyers (who happen to have some spare time and capital) should stage a takeover of a struggling law school somewhere and loudly remake the curriculum. Might be spurned by some, but if they can demonstrate better prospects for graduates the idea could eventually catch on.

          3. Interesting thought. I probably should have included in my earlier comment that student preference matters as well.

            Because employers tend to prefer students with degrees from higher-ranked law schools, prospective law students tend to choose law schools with higher rankings to maximize their chances of landing a job. This employer preference is stronger in the private sector, where a diploma from a top school is a marketing tool that the firm can use to land prospective clients. ("We have more Harvard lawyers than the other guys.") This preference tends to be weaker in public entities, but it still exists – especially in more metropolitan areas.

            So a student who anticipates working in the private sector, who is not sure about his or her preferred career path, or who wants to work in the public sector in a major market would be unlikely to take a chance on an upstart law school, no matter how good the instructors promised to be. Early adoption could after all lead to late unemployment. In short, I suspect that this would lead to a dearth of "quality" applicants to your proposed law school at the outset. This in turn would not do much for your school's reputation, and so the cycle would continue. After all, no matter how good the process, bad inputs will lead to bad outputs.

            (For what it's worth, I suspect that students who go to California Bar Association-accredited schools, which tend to feature practitioners, offer a better legal education than does my alma mater; however, the low ranks of these schools, coupled with the high transactional costs (for example, graduates can only practice in a few states, and they need to take a mini Bar Exam before graduating from school) deter many students.)

            That's not to say that you are making an impossible case. For example, when UC Irvine opened its law school a few years ago, it did not have full ABA accreditation. Thus, any student who went there was gambling both that UCI would obtain its accreditation and that it would end up with an acceptably good rank. To sweeten the pot, UCI offered a full scholarship to its entire first class. Needless to say, students enrolled and UCI is now ranked #28. It also hired Erwin Chemerinsky as its dean, which I'm sure helped as well.

            Given enough donors and enough high-profile faculty practitioners, one could imagine the law school that your propose succeeding.

          4. Then I guess law firms and prosecutors' office have made their own bed by preferring to hire attorneys from law schools that don't provide the sort of education that prepares students for the job. Which is fine, but that shouldn't give them an out to have people working for them for no pay.

            The trend of requiring people to start their careers working for nothing, which is hardly confined to the legal profession, is destructive and needs to end. David listed the criteria for a position to qualify as an internship in the original post, and those criteria need to be enforced.

  6. "limited prosecutions due to budgetary constraints is a feature, not a bug. We have the most people under correctional supervision of any society in human history."

    It's not obvious that prosecutor budgetary constraints reduce incarceration. Certainly one way of dealing with budgetary constraints is to turn criminals loose on the basis that you cannot afford to prosecute them, but that's probably not going to be popular with the voters. More likely you increase the maximum prison sentences for various crimes, while continuing to offer the same deals you were previously offering to people who plead guilty. This increases the incentive for people to plead guilty, and as a result you have to conduct fewer trials.

    1. "More likely you increase the maximum prison sentences for various crimes, while continuing to offer the same deals you were previously offering to people who plead guilty. This increases the incentive for people to plead guilty, and as a result you have to conduct fewer trials."

      Seconded. Last I heard, something like 95%+ of criminal case are plea-bargained.

      Stacking a bunch of 20-years charges will make an awful lot of people plead to a 5-year sentence.

    2. At least in California, this is not true. While trials cost money, so does incarceration. Thus, the state has adopted myriad ways of limiting incarceration. Some of these, like Prop. 47 in 2014, the changes to Three Strikes in 2012 and Realignment in 2011, were very much visible to the public. Other changes to law, which I will describe below, were not so visible.

      First, Realignment has a corollary that is not so well known: There is a presumption in favor of what we call a split sentence. In a split sentence, the defendant is sentenced to a specific prison term, but part of this term is served on a form of supervised release called mandatory supervision. So let us take the example of a defendant sentenced to 2 years in county jail. Absent compelling circumstances, the judge will likely split the sentence into 1 nominal (I will explain nominal below) year of incarceration and 1 year of mandatory supervision. This has the effect of forcing prosecutors to grant probation instead. Why? Because as a prosecutor, I can get a nominal year out of probation, with three years of post-release supervision instead of one.

      Second, as alluded to above, a nominal year is not an actual year. The Legislature has passed various credit laws (e.g. P.C. 4019; 2933) that award prisoners credits for basically not shanking a guard or another inmate. Under these schemes, most crimes are served at 50%, meaning that 2 days equal 4. This is true even of serious felonies (read as, strikes) like assault with a deadly weapon. Felonies with prior strikes that are pled and proven are served at 80% of their nominal time, while violent felonies are served at 85% of nominal time.

      So between changes to Three Strikes, Realignment, and sentencing credits, the trend has actually been to reduce periods of incarceration. While even a jaded prosecutor (like myself) might agree that this is just in many instances, I have also seen a lot of defendants who are aware of how toothless a lot of sentencing is these days and act accordingly.

  7. BTW, the fact that there is a horrible glut of shiny new JD's for years now is not a secret.
    Read 'Inside the Law School Scam' or 'Outside the Law School Scam' for a serious horror story.

    1. No joke. Unfortunately, law school seems to be the catch all for humanities and social science majors who don't really know what to do with their life. That said, aspiring law students really ought to spend a few weeks shadowing real attorneys in various practice areas to see if law is a good fit.

      Most of my classmates drive shiny new cars but work long hours at large firms padding billable hours on cases that they care absolutely nothing about. For those of us who were lucky enough to not get these jobs, the reality is still far from the fantasy. Public defenders who dream of exonerating the innocent and changing the lives of the guilty for the better had better resign themselves to a frustrating existence; prosecutors who dream of making the community a better place and righting wrongs should understand that (1) they will spend a good chunk of their career prosecuting relatively menial, victimless crimes, and (2) a guilty verdict and incarceration don't take away what happened;and those who dream of hanging a shingle should understand that they will spend their entire careers on the hustle.

Comments are closed.