The Prosecutor's Evolution

Abstract

It is axiomatic that American prosecutors possess significant discretion. What varies among prosecutors is how they use their discretion. How they use their discretion derives from how prosecutors perceive their role. Different prosecutors perceive their role differently. Some see themselves as representing the victim and others see themselves as ensuring just outcomes. These differences emerge from the American prosecutor's distinct evolution. Over 200 years, the American prosecutor has transformed through various stages. The private prosecutor, an attorney the victim hired, originated from the British system. With the expansion of democratic institutions, the prosecutor became political, representing a particular political party's interests. Abuses led to prosecutors becoming more professional, representing the state. This disconnected prosecutors from their community. Proactive prosecutors emerged to reconnect prosecutors to their community. Then, in 2016, a new wave of prosecutors emerged. These prosecutors saw themselves protecting defendants from a punitive criminal justice process. This article explores these different perspectives, looking for commonalities that can define the American prosecutor's identity. Three emerge. First, prosecutors are public servants. Though they may serve different publics and do so in different ways, all seek to serve public interests. Second, they represent the community. Prosecutorial policies and case selection derive from community values and priorities. Finally, prosecutors are opportunistic. When given the opportunity to expand their discretion

Keywords: Prosecutors, Discretion, Criminal Justice, History, Identity, Criminal Procedure, Legal History, Progressive Prosecution