Berks County Bar Association The Berks Barrister Fall/Winter 2019 - 22

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Book Review: Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law
Continued from page 21
Yes, a prosecutor has a responsibility to the public [to
prosecute perceived wrongs and castigate wrongdoers]. But there
is also a responsibility to the concept of justice. Sometimes those
two things are in conflict. And part of a prosecutor's job is to
take hits from the public when it feels cheated.
It is difficult to read this section of Doing Justice and not
wonder whether Bharara is attempting to address, in the loftiest
of terms, his critics who have argued that the Department of
Justice under Attorney General Eric Holder, by and through
the Southern District under Bharara, failed to take seriously
its charge to prosecute individual actors on Wall Street in the
wake of the 2008 financial crisis and ensuing recession. Indeed,
Bharara spends some effort in this section explaining the
difficulties of prosecuting white-collar crimes and holding bad
actors accountable when their best (and most effective) defense
is to point to their learned help, i.e., the lawyers and accountants
who aided them in their deceitful actions by furnishing them
with due diligence reports and cooked books. However, to judge
this book by Bharara's actions in Office or his explanations
thereof, is to miss the mark entirely. Doing Justice is not that
work. Its aims are wider. It is worth noting that amid this handwringing over the Department of Justice's prosecutorial response
in the wake of the Great Recession, Bharara's Office successfully
convicted approximately one hundred white-collar defendants
and obtained the largest ever insider trader settlement against
SAC Capital Advisors, at $1.8 billion.
In "Judgment," Bharara places the jury trial in the
foreground. He shines a particular light upon victims of crimes.
In Bharara's opinion, victims are too often left to recede in
importance and to become merely a prop in the public drama
of a trial. Bharara discusses the prosecution of a robber who
victimized a prostitute precisely because of the robber's probable
belief that no one would care about the victim, let alone believe
her and fight for her in court. Bharara cautions his readers:
"Without a strong orientation toward the victim - especially
a vulnerable, powerless, troubled, or unsympathetic victim - a
tendency to risk aversion can overpower the impulse to give
people their shot at justice."
Finally, in "Punishment," Bharara discusses the area rife
with the most "bewildering and consequential questions about
justice," its final phase. The difficulty in determining justice
here lies in the inherent lack of universal metrics for assessing
the justness of a punishment, as well as the historical evolution
of punishment from a public spectacle, such as the proverbial
scarlet letter and town square hanging, to a cloistered affair in an
empty courtroom that results in the literal removal of a human
being from the public for a term of months or years. While
declarations of punishment seem to evoke the loudest responses
from the public, society lacks an established set of criteria to
assess whether justice was really done through a particular
punishment. Nevertheless, Bharara is quick to point out that
returning to "first principles of justice and punishment such
22 | Berks Barrister

as an 'eye for an eye,'" though symmetrically pleasing, clearly
falls outside what free and democratic societies are willing to
accept. While Bharara acknowledges that efforts have been
made to "correct" sentencings, such as the federal sentencing
guidelines, he notes that satisfactory results are left wanting
and have produced tools that resemble bingo cards rather than
instruments of justice.
One of the more surprising discussions in the section,
and indeed this work in its entirety, given Bharara's career as
a prosecutor, is his clarion call for prison reform. Citing his
Office's investigations into the treatment of adolescents at
Rikers Island, which he describes as "a broken hellhole," as well
as lessons from the 1971 "Stanford Prison Experiment," in
which Professor Phillip Zimbardo sought to study the effects of
perceived power on subjects who were randomly assigned roles
as "student jailers" or "student inmates," Bharara notes:
There is a moral reason to care about the state of correctional
institutions...In a just and fair society, the healthy should care
about the sick; the rich should care about the poor; the mighty
should care about the weak; and the prosecutor should care
about the prisoner.
Bharara discusses the tragic death of sixteen-year-old Kalief
Browder who was jailed at Rikers after being charged with
the theft of a backpack. Browder spent two of his three years
at Rikers in solitary confinement. When the charges against
him were dropped, Browder was released from Rikers as a
fundamentally different and damaged young man. Browder
committed suicide amid his campaign to raise awareness about
the conditions of confinement at Rikers. Recalling a colleague's
jury summation, Bharara notes that "the world is full of complex
problems, but sometimes, honestly, what we really need is to see
justice done in places no one thinks justice reaches."
At its core, Doing Justice demonstrates that justice requires
deliberate action and concerted effort by individuals committed
to doing the right thing, for the right reasons, all the time. Even
when it is dull, and even, and most especially, when no one is
looking. "The law," Bharara admits, "has its limits." Alone, the
law cannot forgive, redeem, or make a broken person whole. "It
cannot cancel hate or conquer evil." People, on the other hand,
as Doing Justice demonstrates, have a limitless capacity to be the
most effective tools of justice.
Jesse C. Leisawitz, Esquire, is the Compliance Officer
for the Reading School District. Previously, he served as
an Assistant District Attorney in Berks County, where he
held the designation of Special Assistant United States
Attorney in the United States Attorney's Office for the
Eastern District of Pennsylvania. Leisawitz also worked
as a judicial law clerk in the United States District Court
for the Eastern District of Pennsylvania and in the Berks
County Court of Common Pleas.


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Berks County Bar Association The Berks Barrister Fall/Winter 2019

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