Rachel E. Barkow
New York University School of Law
August 21, 2012
NYU School of Law, Public Law Research Paper No. 12-41
It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.
But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.
This article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction. It focuses on three areas of criminal justice policy – corrections, clemency, and forensics – and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission. It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases. As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate.
Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors – and thus through the lens of what would be good for prosecutors and their cases – it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement. Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases.
The article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns. After making the case that institutional change is feasible in at least some areas, the article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.
Number of Pages in PDF File: 63
Keywords: Criminal Law, Federal Criminal Law, Prosecutorial Power, Institutional Design, Corrections, Forensics, Clemency
JEL Classification: K14, K20
Date posted: August 22, 2012
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