Theories of Prosecution

Many legal commentators have identified prosecutors’ remarkable, often-unbridled discretion as the primary source of flaws in the United States’ criminal justice system. There is currently no widely-accepted normative theory of what prosecutors’ role in the system should be. Consequently, legislators have struggled to maintain a balance between protecting defendants’ rights and leaving unfettered the Government’s enforcement of criminal law. Absent concrete rules or regulations guiding their behavior, prosecutors follow the standard enunciated in Berger v. United States by promising to “do justice.” This model is flawed because it does not define “justice;” in providing significant flexibility, the “standard” does not guide prosecutors at all. The author instead proposes an alternative “servant-of-the-law” theory that promises determinacy by laying the foundation for concrete principles that dictate how prosecutors may best serve black-letter law—not an amorphous, personalized conception of justice—in various situations. Prosecutors who embrace the servant model are adaptive, not robotic; they implement severe tactics when the substantive law is severe and lenient tactics when the substantive law is lenient. They are more likely to dismiss minor cases or cooperate with defense counsel and judges. The servant model thus complements the recent increase in progressive prosecution. Though it does not resolve all flaws in the system, the servant model offers prosecutors a much-needed default position from which they can adopt concrete rules.

“[T]here are reasons to be wary of enhancing the prosecutor’s freedom to ‘do justice’ as an answer to the system’s failings[.] . . . A prosecutor zealously serving the law will be less likely to bend or break existing legal rules by overcharging, relying on coercive plea bargains, failing to provide discovery, improperly striking jurors, maintaining faulty cases, engaging in deceptive closing argument, and so on. . . . [T]he servant-of-the-law model will shift the reform focus to other actors with more mature capacities to enact lasting changes[.]” p. 1253–54