Between Charging and Charged: The Prosecutor Assigning a Proper Meaning to Prosecutorial Power in Criminal Justice Reform.

• Author: Ring, William P.

In the current national discussion of criminal justice reform, prosecutors are being maligned and widely blamed for over-incarceration at failing prisons and that this unjust result stems from causes that range from overcharging offenses in order to secure tough pleas and harsh sentences, (1) to the personal ambition of individual elected public prosecutors who forsake their oaths for political gain. (2) In these and other instances, the argument begins with reference to the "enormous power" of the American prosecutor (3) and that prosecutors have used their "powers" to pack jails and prisons, leading to mass incarceration. (4) The connotations of this power are fully criticized but the power itself is never defined. Without reference to the fountainhead of its source, these "powers" are widely portrayed as super-powers wielded by malevolent actors. (5) They are framed as coercive powers, accumulated for the purpose of undue "leverage". And then used by prosecutors such that, in combination with truth-in-sentencing laws, the charges filed largely determine the sentences to be ordered by the courts. (6)

Prosecutors must take back this dialogue by re-asserting what we do and why we do it. Until that occurs, we will always be reacting to criminal justice reform as it is defined and described by our critics. This article attempts to reclaim those just duties. It begins by considering the source of a prosecutor's power. Upon examination, this power is very specific and quite limited, meaning it is far less enormous than our critics describe. It has little in common with coercive forces and is best described as a specific expertise made applicable through the justice system by the authority granted to the prosecutor from the State. (7) The prosecutor's aim is--first--to seek justice.

JUSTICE

Justice is the first virtue of social institutions. (8) Justice is an intuitive, multi-cultural, a priori for human beings. Justice centers upon the notion of basic fairness. (9) The ideal of justice spreads through our communities because fairness appeals to our inherent bias for safety, security, trust and cooperation. Our communities want a safe and secure present and future. When those factors (justice & fairness) are consistently applied we feel freer to take risks and make plans for our todays and our tomorrows. Our communities also want an accounting of the past to assure that recompense is made and that old injuries heal, and to make it less likely that negative consequences will happen. Again.

Society is well ordered when it is designed to advance the common good and when it is effective in regulating a public conception of justice. (10) A public sense of justice makes secure associations possible. 'While justice can be near-perfect in concept, no conception of justice is perfectly executed. Alas, we abide within the imperfect circumstances of this human life. In a stable democracy, we use law to declare our rational expectations for a just future: (a) before the undesirable circumstances happen; and (b) because the undesirable circumstances will happen. We also assign persons whose duties are to assure that, when the undesirable does occur, still our outcomes line up with our adjusted expectations. Law enforcement and prosecutors, judges and defenders traditionally fill these cultural and legal roles.

ASSIGNMENT OF AUTHORITY, QUALIFICATIONS AND EXPERTISE

The term Prosecutor comes from similar Greek and Latin roots. It means, "One who follows up or carries out any action, project or business". (11) It is he who carries out a cause in another's name. (12) And, a law officer appointed to conduct criminal prosecutions on behalf of the crown or state. (13) There is an agency at work in the prosecutor, though not so developed as the Law of Agency may provide. (14) It is more fundamentally a common law notion that, in order to govern at all, the Sovereign State requires embodied individuals to actually carry out the business of the inchoate State. Through law, the State defines the roles and the methods by which a person ascends to the position of prosecutor; the scope of authority and the qualifications of the position; and how the position is carried out or, more simply, where the position's assignments begin and end.

The State of Arizona provides a study example. In Arizona, (15) the State Constitution explicitly names the limited purpose of government: that all political power is inherent in the people and that governments derive their just...