Rethinking Family Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases

58 Pages Posted: 22 Mar 2017 Last revised: 22 May 2017

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law

Date Written: March 20, 2017

Abstract

Like criminal prosecutors, family court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the shift a generation ago to prosecute about 100,000 more delinquency cases is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family court prosecutors’ authority in much depth.

This article shows how family court prosecutors’ role has never been fully theorized. Family courts historically avoided prosecutors (or lawyers of any kind). When children’s and parents’ lawyers appeared in the 1960s-70s, family court prosecutors soon followed, but without any consensus about how they should make charging decisions and how their authority intersects with agencies or intake officers. This article provides the first detailed description and critique of varying state laws governing family court prosecutors.

This article argues that family court prosecutors should work for and represent juvenile justice or child protection agencies, which should have authority to determine which cases to file. Agencies are best suited to balance the competing interests at stake in family court cases and to choose specific cases on which to focus their limited resources. Agency control over intake could reduce delinquency prosecutions for relatively lower level offenses, which have particularly large racial disparities. Finally, an agency model should lead to limited judicial review of decisions to prosecute cases — a long-elusive goal in scholarship regarding criminal prosecutors.

Keywords: Family Court, prosecutors, juvenile delinquency, child protection, child welfare, separation of powers

Suggested Citation

Gupta-Kagan, Josh, Rethinking Family Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases (March 20, 2017). University of Chicago Law Review, Vol. 85, (2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2937827

Josh Gupta-Kagan (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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