Theories of Prosecution
51 Pages Posted: 19 Mar 2019 Last revised: 18 Aug 2020
Date Written: March 6, 2019
For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.
The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely-accepted normative theory of the prosecutorial role. As a result, prosecutors are viewed as the criminal justice system’s free agents, deploying the powers of their office as they see fit to serve constituents, public safety, or, most broadly, the cause of justice.
This Article uses the rapidly shifting views of prosecutors to explore normative theories of prosecution: What should prosecutors be doing? It highlights the emptiness of the current “do justice” model, and proposes an alternative “servant-of-the-law” theory of prosecutorial behavior that could place real constraints on prosecutorial excess. It also explores ways in which a servant-of-the-law model could, perhaps counterintuitively, contribute much-needed theoretical grounding to the progressive prosecution movement.
Keywords: prosecutors, criminal justice
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