Against Adversary Prosecution

62 Pages Posted: 22 Aug 2016 Last revised: 2 Apr 2018

See all articles by Eric S. Fish

Eric S. Fish

Yale University, Law School, Students

Date Written: March 24, 2018

Abstract

American prosecutors are conventionally understood as having two different roles. They seek conviction and punishment as adversary advocates, and they also ensure the system’s fairness as ministers of justice. This Article argues that the former role, prosecutorial adversarialism, should be rejected. It should be written out of ethics codes and removed from law-school textbooks. The essence of adversary lawyering is competitive amorality — an attorney seeks a certain outcome not because it is the best outcome all things considered, but because it counts as a victory for their client. Such competitive amorality cannot be justified for prosecutors. Prosecutors are the most powerful actors in the criminal justice system — they decide what charges are brought and set the terms of plea negotiations. They also represent an abstract client — the state — that exercises no meaningful control over their decisions. In place of adversarialism, this Article proposes an alternative dual role for prosecutors. Where the law constrains them, they should implement the law with professional indifference to outcomes. Where the law leaves them discretion, they should engage in moral deliberation to decide which policies to pursue and be held politically and morally answerable for those policies. The Article also explores how other branches of government can guide prosecutors’ offices in deciding what values to prioritize.

Keywords: Prosecution, Professional Ethics, Adversary System, Criminal Law, Criminal Procedure

Suggested Citation

Fish, Eric S., Against Adversary Prosecution (March 24, 2018). Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2820342 or http://dx.doi.org/10.2139/ssrn.2820342

Eric S. Fish (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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