Prosecutors in Robes

63 Pages Posted: 18 Mar 2024

See all articles by Jacob Schuman

Jacob Schuman

The Pennsylvania State University (University Park) – Penn State Law

Date Written: February 18, 2024

Abstract

Criminal law enforcement is traditionally considered a core executive power.  Yet federal district judges exercise that power tens of thousands of times a year by initiating proceedings to revoke probation and supervised release.  “Prosecutors in robes” is an insult sometimes levied by criminal defense attorneys against judges who are allegedly biased in favor of the government.  In this Article, however, I do not use the phrase to suggest that district judges are acting in bad faith.  Instead, I mean it literally.  When judges initiate revocation proceedings, they wield a prosecutor’s power to enforce criminal law.

Combining constitutional, historical, and empirical analyses, I argue that judge-initiated revocation violates the form and function of the separation of powers.  Formally, initiating a revocation proceeding is a type of criminal law enforcement, which is authority that the Constitution vests solely in the President and was originally understood as an executive power.  Functionally, my empirical study of federal sentencing data shows that initiating revocations aggrandizes the judiciary’s role in the criminal justice system by weakening democratic accountability, undermining uniform policy, and compromising judicial impartiality.

While most legal scholars believe that a strong and independent judiciary is necessary to check prosecutorial overreach, I argue that federal district judges have become “prosecutors in robes” who themselves must be checked by the executive branch.  To restore the separation of powers to probation and supervised release, only prosecutors should be allowed to initiate revocation proceedings, while judges should be limited to adjudication and sentencing.  This change would ensure that no single branch of government enjoys total authority to impose criminal punishment.  Our Constitution separates powers to protect liberty and prevent tyranny.  A prosecutor in a robe is a king.

Keywords: Criminal law, criminal procedure, constitutional law, community supervision, separation of powers, probation, parole, supervised release, revocation

Suggested Citation

Schuman, Jacob, Prosecutors in Robes (February 18, 2024). Stanford Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4732874

Jacob Schuman (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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