Fault Lines
6 December 2017

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:

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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.

23 Comments on this post.

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  • Jeff Gamso
    2 November 2016 at 9:57 am - Reply

    My wife, a sociologist, has told me that I have no sociological or psychological insight. Nevertheless, the introduction to a quote of mine (attributed to an otherwise unidentified “ACLU lawyer,” but it was me) in a book on the death penalty says that the statement was made “with telling psychological insight.” Having clarified that much, I wade into the murk without portfolio.

    But first a (another?) caveat. Having the job and being the thing are different. Lots of lawyers do criminal defense, some do little or nothing else. They are lawyers defending those accused of crimes; they aren’t criminal defense lawyers. Same for prosecutors, many of whom are just employees.

    What makes the person the thing (a near-reification I’m not particularly happy with, but them’s the breaks) is a point of view, an approach to the world, an attitude.

    Prosecutors see the world in absolutes. We see the world as nuanced. They value certainty. We value doubt. They revel in the concrete, in facts, and avoid the muck. We are agnostics and wade in. They believe in some abstract “justice” and see injustice only when the abstraction is thwarted. We see injustice and if we pretend to understand “justice” at all, find it only when fairness prevails.

    They honor obedience and authority. We respect challenge and dissent and disagreement.

    We worry about people being crushed by the system. They are the system. We root for the underdog. They support winners. (Back in the day, we wore Dodger blue and they Yankee pinstripes, though when the Dodgers abandoned us for La La Land . . . . Sorry, I’m digressing.)

    We’re nicer than they are.

    • Richard G. Kopf
      2 November 2016 at 10:17 am - Reply

      Jeff,

      Aside from being nice, and I generally agree that CDLs are nice enough, are CDLs dogs or cats?*

      All the best.

      Rich Kopf

      *No bullshit about being a little bit of both. My son the biologist says that is a psychological impossibility.

      • Richard G. Kopf
        2 November 2016 at 10:21 am - Reply

        Jeff,

        At the *, I meant physiological, and not psychological.

        Ah, Freud!

        All the best.

        RGK

      • REvers
        2 November 2016 at 11:34 am - Reply

        Judge, I’ll answer that one.

        Dogs are obedient and they want to please their master. They will happily and without reservation do what they are told to do.

        Cats, while they can be unbelievably affectionate, do not take kindly to being told what to do. Their attitude toward authority is, “Yeah, right. You and what army?”

        CDLs are cats. At least, real CDLs are cats. I have known some who are clearly dogs. As a rule, they aren’t effective.

        • Richard G. Kopf
          2 November 2016 at 6:38 pm - Reply

          REvers,

          Your impression is the same as mine.

          Real CDLs are cats thus likely scoring just below one standard deviation above the mean on the Psychopathic Deviate scale in my imaginary MMPI-2 administration. I’m kidding, I think.

          All the best.

          RGK

  • Jeff Gamso
    2 November 2016 at 10:22 am - Reply

    “Nice enough”? Like what Barak said about Hillary?

    I’m partial to the beauty and majesty of the snow leopard. But I do love my little poochie.

    • Jeff Gamso
      2 November 2016 at 11:13 am - Reply

      Oops. That should be “Barack,” of course, not “Barak.”

  • SPM
    2 November 2016 at 11:35 am - Reply

    In the rural area where I currently live, it seems that every lawyer in the county at one time has been the prosecuting attorney – and when they are not prosecuting they are defending. At the other end of the scale, there are several extremely high profile defense attorneys in the state who heavily advertise the fact that they are former federal prosecutors.

    So the question that came to mind when I first read the title was whether there is a clear career distinction between prosecutors and CDLS. That is, how often is a lawyer one or the other for life? Is bouncing back and forth between the two the exception, or the rule?

    Migration from CDL to prosecutor to CDL to prosecutor to judge would tend to indicate that there is little inherent psychological difference between the two (or three). But, as I said, such a path may be very rare.

  • Jim Tyre
    2 November 2016 at 11:44 am - Reply

    Judge Kopf,

    Interesting piece, thanks.

    Quick preface, I’ve been a litigator for close to 40 years, but I work the civil side, never criminal. (Well there was that time when FBI raided me, sans warrant, claiming I had done bad things in violation of The Espionage Act. But I digress.) So I can’t speak from personal experience.

    What of folks such as Ken White who were prosecutors but then transitioned to CDL? (I use Ken as an example because mean-ass editor sometimes has railed against former prosecutors who move to the defense side, but only doing BigLaw white shoe sort of defense. Ken, as well as many others, gets in the trenches.) Must they undergo a complete personality change to make the switch? Are prosecutors and “true” CDLs more alike than some might think? I don’t know, but this blog post makes me consider the question.

    (Jeff, given your first comment, which is pretty stark in use of we/they, I’d be interested in your thoughts too.)

    • Jeff Gamso
      2 November 2016 at 11:57 am - Reply

      Since you asked.

      Yes,as both you and SPM note, lots of people have moved from one side of the courtroom to the other. For many, as I tried to suggest, it’s all just a job. They are, perhaps, litigators. They’re not prosecutors or criminal defense lawyers except coincidentally. Litigation is litigation and you do whatever works for your team. It’s just a game. (Back to the baseball analogy, when you’re traded from one team to another, you’re expected to play as hard for the new team as you did for the old – even when the two face each other; it’s just a game, after all.)

      A no-longer judge, who was for many years a criminal defense lawyer, grumbled to me once about the quality of some lawyers who defended criminals. “Don’t they realize,” he asked rhetorically, “that it isn’t a job; it’s a calling.” I was writing about the people for whom defending (and those for whom prosecuting) is a calling.

      To press the explanation some, Ken White, who can certainly speak for himself, is one of those who found his calling after a stint as a litigator.

      • Jim Tyre
        2 November 2016 at 12:11 pm - Reply

        Thanks. I get the distinction between a job and a calling, I should have been more clear. What of folks who considered being a prosecutor to be a calling, but now consider CDL work to be a calling?

        (BTW, there are civil litigators who consider what they to to be a calling, not just a job. And often they’re right.)

        • Richard G. Kopf
          2 November 2016 at 12:24 pm - Reply

          Jim,

          Let me butt in. Yes, prosecutors can become real CDLs and the opposite is true. However, and not to put too fine of a point on it, those folks are call schizophrenics.

          All the best.

          Rich Kopf

        • Jeff Gamso
          2 November 2016 at 12:26 pm - Reply

          They say a conservative is a liberal who’s been mugged and a liberal is a conservative who’s been arrested.

          All these distinctions are subject to the whims of fate and whose ox is being gored.

          Sometimes those folks were just wrong about who they were – or discovered that prosecuting (or defending) wasn’t what they imagined/idealized/were gulled into believing it to be.

          And yes, I knew that about civil litigators, too. Insofar as I may have demeaned them, I misspoke (miswrote?).

  • Jay Macke
    2 November 2016 at 2:55 pm - Reply

    I agree with Jeff (Hi Jeff!). And while I don’t currently work in criminal defense and haven’t for about five years, I’m still a public defender and criminal defense attorney, dammit!

    In the best of all possible worlds, being a CDL would remain a calling while being a prosecutor would just be a job. I think it’s the true-believer prosecutors who are the most dangerous in the system. I think every CDL has a story about some prosecutor who has her-or-himself convinced that justice works only by her hand, and that justice involves really long prison sentences completely divorced from the facts of the crime.

  • Brian
    2 November 2016 at 4:20 pm - Reply

    I agree with Jay Macke above in the best of all possible worlds.

    Unfortunately the MMPI is not really available to take online. Another thing I’d be interested is the results of an EQ test between prosecutors and CDLs. I wonder if the frustration the CDL faces brings with it a higher emotional maturity. (Pulling this out of my ass as well, of course!)

    As for you, Judge, this is more like what I’ve come to expect!

    • Richard G. Kopf
      2 November 2016 at 6:03 pm - Reply

      Brian,

      I am glad you liked this better than the last one. Perhaps your implication about the last one was correct. That is, my button got pushed.

      Who knew I had a button to push? Learn something every day.

      All the best.

      RGK

  • MOK
    3 November 2016 at 6:04 pm - Reply

    My totally unsupported and frivolous take on the issue is as follows:

    CDL are “weepy whiners”.

    Prosecutors are “crabby cynics”.

    Finally, I am not a very good judge of character and an even worse comedian.

    • Jeff Gamso
      3 November 2016 at 9:31 pm - Reply

      CDL’s are far more cynical than prosecutors. Prosecutors, on the other hand, are far more inclined to whine than we are.

  • Anon
    5 November 2016 at 12:36 pm - Reply

    Ugh. There are few things more tedious than someone who thinks she’s deeper than everyone else.

    I wonder how she reconciles her hot take with the large numbers of experienced CDLs who apply every year to the DOJ, FBI, and ASA/USA’s offices?