The Many Faces of Prosecution

Abstract

A quick read through the bulky legal literature about criminal prosecution in the US might lead a reader to conclude that individual prosecutors, and the offices where they work, are very much the same. All prosecution professionals seem to fit the mold, regardless of the region where they work, the size of their office, or their years of experience on the job.

This generic portrait of prosecution, and of prosecutors, misses the mark. If one were to look beneath the surface to examine the professionals who work in the more than 2,500 individual prosecutor’s offices in this country, diversity would drive the story—diversity in terms of demographic profile, career plans, office policies, quality of work, and more. The point applies both to individuals and to institutions. At the individual level, one is bound to find some bad apples and some good eggs who work in the prosecutor’s office. As for the institutional setting, there are bad incentives and corrosive cultures that overcome even the best of intentions from the individuals who work there; offices elsewhere create good incentives, with a lot of institutional variation in between.

Traditional sources for legal scholarship—cases, statutes, court outcome data, and the secondary literature built upon these sources—allow only a faraway and obstructed view of the pretrial “office” work of prosecutors: their decisions to decline, charge, investigate, and offer terms for plea bargains. It is therefore difficult, using these methodological tools, to appreciate the many faces of prosecution, either in the institutional or the individual sense. These research methods offer a glimpse of single prosecutors working on single cases, or the aggregate post-conviction results of an entire office. Too often, scholars overstate or underestimate a trend, treating one news event or one point in the criminal process as the key to understanding prosecution. They reinforce an essentialist view of prosecutors.

Keywords: criminal prosecutors, prosecutors, criminal law, policy, defense