The New Prosecution
Kay L. Levine
Emory University School of Law
Wake Forest Law Review, Vol. 40, p. 1125, 2005
Emory Public Law Research Paper No. 05-38
We are witnessing the emergence of a new paradigm of prosecution, as prosecutors forego their traditionally reactive, single case focus and instead seek to tackle social problems that underlie many low-level criminal behaviors. This article draws upon surveys and interviews with prosecutors in California to identify and to explain the advantages and pitfalls of broad-based, problem-oriented strategies that form the core of this model, which I term "the new prosecution."
This study of the new prosecution illuminates both the virtues and the significant difficulties associated with this approach. The data show that problem-oriented prosecutors are likely to be more responsive to the communities they serve and to develop creative and broad-ranging strategies to managing deviance within these communities. But the findings also reveal significant limitations in the new prosecution's problem orientation. First, problem-solving approaches are most compatible with chronic, low-level criminal offenses. These crimes hold little professional allure for prosecutors, who therefore have little incentive (at least in traditional professional terms) to devote time and energy to solving them. Second, the problem-oriented model produces among prosecutors a challenging role conflict, as the skills required for effective, creative problem-solving contrast sharply with those traits that traditionally define a good prosecutor. I argue that this professional conflict manifests a strong gendered dimension, as the adversarial skills valued by prosecutors take on a masculine character, while the skills required to adeptly handle the new prosecution assignments appear to be feminine.
I conclude by arguing that reconceptualizing the prosecutorial role could help the new prosecution achieve its reformist project, and that enlarging the prosecutorial agenda to include community-based, crime reduction strategies seems like a worthwhile goal. My reasons for optimism about the wide-ranging problem orientation animating the new prosecution regime are far fewer, however. By placing prosecutors at the head of multi-agency coalitions charged with solving social problems, the new prosecution promises to transform social pathologies into criminal justice problems. The new prosecution's continued reliance on conventional criminal justice responses to deviant behavior - conviction, punishment, and surveillance - therefore may limit rather than expand the range of options that could ameliorate these pathologies.
Number of Pages in PDF File: 76Accepted Paper Series
Date posted: December 13, 2005
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