Prosecutors as Partisans

Abstract

Prosecution in the United States has long been political. But the nature of prosecutorial politics is changing. Once bipartisan and largely reactive, the politics of prosecution is more partisan and proactive, in ways that both reflect and amplify larger cleavages in American society. This Essay considers the upsides and downsides of this development. On the one hand, political contestation over prosecution democratizes criminal enforcement, stimulates public thinking and debate about the role and purpose of criminal law, and promotes local political agency. On the other, it risks falling prey to the same pitfalls that have impoverished American political life generally in recent decades: societal division, decline in reasoned assessment, difficulties forging sustainable compromise, and erosion of trust in institutions. The Essay concludes with some thoughts on how to maximize the upsides and minimize the downsides in this new era of partisan prosecutorial politics.

Keywords: Prosecutors, politics, democracy, partisanship, crime