The nature and function of prosecutorial power.

Author:Sklansky, David Alan

TABLE OF CONTENTS INTRODUCTION I. POWER A. Describing and Measuring Prosecutorial Power B. American Exceptionalism and Unexceptionalism C. Plea Bargaining and Caseloads II. INTERMEDIATION A. Adversarial and Inquisitorial Justice B. Police and Courts C. Law and Discretion D. Flexibility and Complexity III. REFORM CONCLUSION INTRODUCTION

Much of what is wrong with American criminal justice-its racial inequity, its excessive severity, its propensity for error-is increasingly blamed on prosecutors. (1) Moreover, prosecutors seem to be getting ever more powerful, not just in the United States, but in much of the rest of the world as well. (2) The nature of prosecutorial power and the reasons for its growth remain murky, though. As a result, it is hard to know exactly what to make of prosecutors or what we should expect from them. There is plenty of thoughtful, well-informed scholarship on prosecutors, especially in the United States, but most of this work is self-consciously pragmatic. It takes the modern prosecutor's office as a given, a dragon that we find living in our midst and wish to tame. My goal here is slightly different, less immediately reformist. I want to step back and try to understand the dragon: what kind of animal it is and why it is with us.

The haze surrounding prosecutors is both descriptive and conceptual. On the descriptive side, we know much less about prosecutors than we do about the other main officials in the criminal justice system: judges and the police. Unlike judges, prosecutors generally do not announce the grounds for their decisions-or even, often, the fact that they have made a decision. And unlike the police, prosecutors carry out most of their work behind closed doors. Although law enforcement remains in many ways a secretive occupation, the bulk of patrol work is necessarily done in public, and it has become common over the past half-century for large police departments to open themselves to outside researchers. (3) As a result, we now have qualitative, observational accounts of virtually every sort of task that police officers carry out. We have nothing like that for prosecutors. (4) At the quantitative level, as well, we have detailed information about the demographics of police workforces and fine-grained statistics about investigatory stops, citations, summonses, and arrests. (5) We have good data on judges and on judicial case management, too, from bail decisions through sentencing. (6) By comparison the statistics on prosecutors and their exercises of discretion are meager. (7)

If anything, the conceptual fog around prosecutors is even thicker. Evaluating prosecutors who seek reelection is difficult not just because the available information about how they run their offices is so limited, (8) but also because it is unclear what information we should want. Even when what prosecutors have done is reasonably plain, it can be hard to know how to assess it. In the second half of 2014, for example, prosecutors in Missouri and New York failed to indict the white police officers responsible for separate, widely publicized killings of unarmed black men. In each case, the prosecutors said they had provided a grand jury with all of the relevant evidence, both incriminating and exculpatory, and the grand jurors had made their own, independent assessment that no charges were justified. (9) Modern grand juries are famously docile, (10) so pinning the decision on them sounded a little like Mr. Spenlow blaming his law partner for his own stinginess-explaining with "gentle melancholy" that "it is an irksome incident in my professional life, that I am not at liberty to consult my own wishes." (11) But what should the prosecutors have done? Some critics faulted them for presenting exculpatory information to the grand jurors: that was acting like defense attorneys, not like prosecutors. (12) But prosecutors are often attacked precisely for failing to present the evidence to grand juries evenhandedly. (13) Some observers thought the prosecutors in the Missouri and New York cases were insufficiently responsive to their constituents. (14) Others said the prosecutors, at least in Staten Island, may have been too responsive to their constituents. (15) But how should public opinion influence prosecutorial decisions? In what ways, if any, do we want prosecutors to be politically accountable?

These questions are so thorny in large part because our expectations of prosecutors are so conflicting. (16) We want them to be zealous advocates and impartial reviewers of the facts, crime fighters and instruments of mercy, law enforcement leaders and officers of the court, loyal public servants and independent professionals, champions of community values and defenders of the rule of law. We have conflicting expectations of other officials, too, but not to the same extent. I will argue that this is actually the key to understanding prosecutors: above all else, they are mediating figures, bridging organizational and theoretical divides in criminal justice. The boundary-blurring nature of prosecutorial power, I will suggest, helps to explain its rise and is critical to thinking sensibly about its control, reformation, or replacement.

First, though, I need to lay some groundwork. Part I of this Article will address the perception and reality of prosecutorial power. What do people mean when they say that prosecutors are the most influential actors in the criminal justice system and are growing increasingly more powerful, and what evidence supports these claims? Part I will also examine the extent to which prosecutorial power is a distinctly American phenomenon or a worldwide trend. Two or three decades ago it was conventional wisdom that prosecutors in the United States had no parallels overseas, (17) and even today it is common to stress the uniqueness of the American prosecutor. (18) But there is also a growing literature suggesting that prosecutorial power is on the rise elsewhere in the world, especially in Europe. (19) So how exceptional is the United States in this regard? Finally, Part I will assess and ultimately reject a common, two-part explanation for the rise of prosecutorial power: burgeoning caseloads and the growth of plea bargaining. The story is that as criminal caseloads have ballooned, the system has been forced to forego trials in favor of consensual settlements, and the haggling over outcomes has made prosecutors more important and more powerful. (20) The biggest problem with this explanation is the direction of causation. It is unclear whether rising caseloads have led to more plea bargaining, or whether plea bargaining instead has increased caseloads by expanding the system's capacity, the way that widening a highway can bring more traffic. (21) Nor is it clear whether prosecutorial power has been boosted by the rise of plea bargaining, or for that matter by swelling caseloads, as opposed to vice versa. It is not even obvious, as an initial matter, why more criminal cases or more plea bargaining should be expected to bolster prosecutorial power.

Part II of the Article will advance a different explanation for the growing clout of prosecutors, rooted in a specific understanding of the prosecutor's role. I will argue that prosecutors are first and foremost mediating figures. They mediate between law and discretion, between vengeance and mercy, between the adversarial and inquisitorial systems, and between courts and police. This mediating role is what distinguishes prosecutors most significantly from other actors in the criminal justice system, and it is likely why the system has come to rely on them so heavily. Accordingly, Part III of the Article will suggest that the mediating functions performed by prosecutors must be taken into account if we are to think productively about curtailing the power of prosecutors, refashioning their self-image, or altering their behavior.

One sign of our impoverished thinking about prosecutors is that the agenda for prosecutorial reform in recent years has so often been cribbed from police reform. "Community policing" seemed successful, so why not "community prosecution"? (22) "Intelligence-led policing" and "predictive policing" lead to talk of "intelligence-driven prosecution" (23) and "predictive prosecution." (24) And when our aspirations for prosecutors do not echo the latest buzzwords in policing, they are often close to vacuous. Attorney General Robert Jackson's famous 1940 address to the United States Attorneys asked them to rededicate themselves "to the spirit of fair play and decency." (25) Jackson explained that "[t]he qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman," and "those who need to be told would not understand it anyway." (26) Pretty much the most Jackson could say was that the good prosecutor "tempers zeal with human kindness, ... seeks truth and not victims, ... serves the law and not factional purposes, and ... approaches his task with humility." (27) Justice Sutherland's equally celebrated remarks five years earlier for the Supreme Court in Berger v. United States urged prosecutors to proceed with "earnestness and vigor"-striking "hard blows" but not "foul ones," forswearing "improper methods calculated to produce a wrongful conviction" but employing "every legitimate means to bring about a just one." (28)

Jackson's speech and Berger are hallowed texts; (29) they are for prosecutors what the Peelian Principles are for police officers. (30) And like the Peelian Principles they serve too often as a substitute for thought. With some justification, Ian Loader faults the Peelian Principles not only for saying too little but also for lacking legal force. (31) They are paragons of specificity, though, compared with "fair play," "decency," and striking "hard blows" but not "foul ones." (Jackson's speech actually had a bit more content than that, but the content, as we will...

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