Psychological Differences Between Prosecutors & Criminal Defense Lawyers
November 2, 2016 (Fault Lines) — We know that dogs and cats have different psychological makeups. That indisputable point can be illustrated thusly:
The question is whether the same thing is true for prosecutors and criminal defense lawyers (“CDLs”). Do prosecutors and CDLs have different psychological makeups? I address this question next.
So far as I can tell, there is no empirical research on the psychological profiles of American prosecutors and CDLs and whether those profiles differ. To be sure, and although there are not many, there have been studies about the psychological makeup of lawyers in general together with other professionals. See, e.g., Kareen K. Akiskal, Mario Savino, Hagop S. Akiskal, Temperament profiles in physicians, lawyers, managers, industrialists, architects, journalists, and artists: a study in psychiatric outpatients, Journal of Affective Disorders (March, 2005).
In the foregoing study, the investigators found “Dysthymic [depressive] and obsessional attributes are notable in lawyers and physicians.” Even then, “more of the physicians [were] ‘warmer’ than lawyers are.”
Finding no direct empirical research on the question of the psychological profiles of prosecutors and CDLs, I stumbled over a fascinating article that provides a subjective assessment of the personality of prosecutors, albeit it in lay rather than psychological language. See Abbe Smith, Are Prosecutors Born or Made, 25 Geo. J. Legal Studies 943-960 (2012). (Abbe Smith is an American criminal defense attorney and professor of law at Georgetown University Law Center. Smith is Director of the Criminal Defense and Prisoner Advocacy Clinic and Co-Director of the E. Barrett Prettyman Fellowship Program.)
She begins her provocative paper by quoting a former prosecutor: “Like a lot of prosecutors, I possess a zeal that can border on the bloodthirsty …. I put a lot of people in prison, and I had a great time doing it . . . .” Id. at 943. After giving examples where prosecutors behaved unreasonably in her view, Ms. Smith surveyed other CDLs across the nation in an effort to determine whether nasty and unreasonable prosecutors are the norm. I bet you can guess what the result was.
She then provides her assessment of the typical prosecutor (and she has taught many a prosecutor) and his or her personality traits:
Here’s what I think about the prosecutor personality: There are students who immediately strike me as prosecutor-types. They are more conventional, judgmental, and professionally ambitious than my defender-type students, and often more uncomfortable representing people who “do bad things.” They seem surer of themselves and their own worldview. They don’t have much interest in discussions about the moral complexity of crime. They believe that people “make choices.” They prefer representing clients in court to working with them in the community. They are happy to let go of a client when the case is over and move on to the next.
Id. at 955-956.
There is some reason to think Ms. Smith may be on to something, although she is obviously biased. By virtue of their jobs, prosecutors are constantly seeing cases were “bad” people escape justice either in the courtroom or because the cops don’t have the goods to make a case stick. These experiences can have profound psychological consequences.
Consider the work of three social psychologists* from three highly regarded American Universities. Julie H. Goldberg, Jennifer F. Lerner, and Philip E. Tetlock, Rage and reason: the psychology of the intuitive prosecutor, 29 European Journal of Social Psychology 781-795 (1999). In summary, here is what they found:
[I]t was hypothesized that people are best thought of as `intuitive prosecutors’ who lower their thresholds for making attributions of harmful intent and recommending harsh punishment when they both witness a serious transgression of societal norms and believe that the transgressor escaped punishment. The data support the hypotheses. Anger primed by a serious crime `carried over’ to influence judgments of unrelated acts of harm only when the perpetrator of the crime went unpunished, notwithstanding the arousal of equally intense anger in conditions in which the perpetrator was appropriately punished or his fate was unknown.
Id. at 871.
We might well infer from this research that criminal prosecutors, like many lay people, are influenced by unpunished crime in such a way that they are driven to exact harsh punishments on those (relatively few) criminals who are caught and punished. Since criminal prosecutors often see criminals go free, one might suspect that prosecutors are in a constant state of unrecognized “rage.”
If the foregoing paints at least a partially accurate picture about prosecutors, what is the portrait for CDLs? And it is here that I run head first into a concrete wall. The literature tells me very little about the psychological profile of CDLs.
I have my own guesses. For example, and pulling this entirely out of my ass, I would bet (not very much) that a really successful CDL who took the Minnesota Multiphasic Personality Inventory (MMPI), the most widely used and researched objective standardized psychometric test of adult personality and psychopathology, would show: (1) a score approaching but not exceeding one standard deviation above the mean on the scale that measures conflict, struggle, anger, and respect for society’s rules (the Pd scale); and (2) a score approaching but not exceeding one standard deviation above the mean on the scale that measures trust, suspiciousness, and sensitivity (the Pa scale).
But my guesses are not adequate. I have no empirical basis for comparing and contrasting the psychological profiles of prosecutors and CDLs. So, I need your help.
Would do you think? Do prosecutors and CDLs have different psychological makeups? If so, what are those differences? Do they matter?
Richard G. Kopf
Senior United States District Judge (Nebraska)
*I had the privilege of sitting on the dissertation committee of a fine and very kind person, a true legal scholar, and a man who served for nearly 14 years as the career law clerk to my colleague, the legendary United States District Judge, Warren K. Urbom. My friend now serves as the Assistant Dean for Students and Administration at the University of Nebraska, College of Law. His name is Marc Pearce. Mark received his Ph.D. in social psychology. His fascinating dissertation Distinguishing Civil and Criminal Institutional Deprivations of Liberty (August 2008) explored condemnation as a means of distinguishing between civil and criminal deprivations of liberty by studying and comparing insanity defense judgments and juvenile court jurisdictional determinations.