Prosecutors and Democracy — Themes and Counterthemes (Epilogue)

Abstract

Discussions of the relationship between prosecutors and democracy have been excessively dominated by a narrow understanding of democracy as a principal-agent relationship in which prosecutors, as representatives of the people, are responsive to their wishes. A richer understanding of the sources of legitimation of prosecutors and of the relationship between prosecution and democracy may help deepen our understanding of what it is distinctive about prosecutors in the United States and open possible avenues for discussion and reform in the United States and elsewhere. This paper — a revised version of which will serve as the epilogue of PROSECUTORS AND DEMOCRACY: A CROSS-NATIONAL STUDY (Máximo Langer & David Alan Sklansky eds., Cambridge University Press, forthcoming 2017) — explores four different ways in which prosecutors might be thought to be “democratic” — or, alternatively, four different kinds of “democracy” that criminal prosecution can help to constitute. Prosecutors can promote representative democracy, by serving as an agent of the people. Prosecutors can be key figures in what can be called legal democracy, by serving as neutral and independent ministers of justice, advancing the rule of law. Prosecutors can be democratic by advancing the values that embody a given conception of democracy, such as liberal democracy and its values of liberty, dignity, and equality. Finally, systems of criminal prosecution can be configured to promote various conceptions of participatory democracy, by securing roles for the victims of crime and for members of the community more generally.

Keywords: Prosecutors, democracy, criminal justice, comparative law

JEL Classification: K14, K33, K40, K41, K42, K49