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.

[Cross-posted at The Reality-Based Community]

David Ball

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.