The American Prosecutor: Independence, Power, and the Threat of Tyranny

Abstract:     
This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct as did the Independent Counsel and argues that the case law fails to provide remedies to victims of prosecutorial misconduct. Part II sets forth the tension between independence and accountability for the Independent Counsel and regular prosecutors and discusses the inadequacy of current mechanisms of accountability. Part III explains the historical foundation of the American prosecutor and argues that there is no historical or constitutional justification for the current prosecutorial model. Part IV critiques the Citizens Protection Act of 1998, a law that purports to provide additional measures of accountability for federal prosecutors.

Because neither the Citizens Protection Act nor the current constitutional design provides an effective control on prosecutorial power, the final section, Part IV, suggests two reforms that would hold prosecutors accountable to their constituents by providing more public access to prosecutorial policies and practices. Under the first proposal, Public Information Departments in prosecution offices would educate the public about the role, duties, and responsibilities of prosecutors, thus empowering constituents to hold prosecutors accountable. The second proposal calls for the creation of Prosecution Review Boards. These boards would provide unannounced, random reviews in prosecution offices (even in the absence of a complaint) to detect and deter misconduct and arbitrary decision-making. Davis’ proposals call for a more hands-on approach and higher scrutiny of the American prosecutor.

Number of Pages in PDF File: 85

Keywords: prosecutorial misconduct, prosecutor, prosecutorial power, independent counsel

Accepted Paper Series