The Pitfalls of Professionalized Prosecution: A Response to Josh Bowers's 'Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute'

Abstract

This short essay responds to Josh Bowers’s article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh perspectives over insiders’ jaded expertise. Thorough solutions would require large structural reforms to bring laymen back into power as a check, either at charging or at sentencing. The trick will be pulling off this important task in our cash-strapped, overwhelmed criminal justice system.

Keywords: criminal law and procedure, American criminal justice system, prosecutorial discretion, criminal justice policy, punishment, sentencing, Josh Bowers