41 Pages Posted: 27 Apr 2016 Last revised: 26 May 2016
Date Written: April 26, 2016
Much of what is wrong with American criminal justice is increasingly blamed on prosecutors. This paper explores the nature of the power that prosecutors exercise, and the reasons why they have accumulated it. Prosecutorial power is not a product, ultimately, of rising caseloads, the increasing reliance on plea bargaining, or the punitive turn in American criminal justice. Instead, the growing prominence of prosecutors, both in the United States and elsewhere, stems from the prosecutor’s preeminent ability to bridge organizational and conceptual divides in criminal justice. Above all else prosecutors are mediating figures, straddling the frontiers between adversarial and inquisitorial justice, between the police and the courts, and between law and discretion. By blurring these boundaries, prosecutors provide the criminal justice system with three different kinds of flexibility — ideological, institutional, and operational — and they strengthen their own hands in in a legal culture that increasingly disfavors institutional rigidity and hard-and-fast commitments. At the same time, though, the mediating role of the prosecutor frustrates traditional strategies for making government accountable. The bridges that prosecutors provide — between law and politics, rules and discretion, courts and police, advocacy and objectivity — make curtailing prosecutorial power and taming prosecutorial discretion trickier business than is often suggested, or at least a different kind of business.
Keywords: prosecutors, criminal justice, plea bargaining
Suggested Citation: Suggested Citation
Sklansky, David Alan, The Nature and Function of Prosecutorial Power (April 26, 2016). Journal of Criminal Law and Criminology, Vol. 117, No. 2, Forthcoming; Stanford Public Law Working Paper No. 2770815. Available at SSRN: https://ssrn.com/abstract=2770815