Prosecutors and Their Legislatures, Legislatures and Their Prosecutors
In: Oxford Handbook of Prosecutors and Prosecution (2020 Forthcoming)
In: Oxford Handbook of Prosecutors and Prosecution (2020 Forthcoming)
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The Independent Counsel statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Following the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr, Congress allowed the statute to sunset. This article assesses and seeks to refute both the standard objections to the now-expired statute and the arguments in favor of a new and improved version. It rejects as false the so-called "discretion dilemma" – the idea that we must choose between under zealous investigation by regular prosecutors and overzealous investigation by ICs – and argues that the structure of and the incentives attendant to the prosecutorial apparatus, the relatively apolitical check provided by federal law enforcement agents, and considerations of appearance and public trust all counsel in favor of leaving the IC concept right where it is – dead and buried. The Department of Justice, an institution dominated by professional prosecutors and investigators with a relatively thin overlay of political appointees, and with a lengthy track record of nonpartisan work, is far better equipped to handle not only investigation of high-ranking government officials but also the political attacks that inevitably attend such investigations.
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The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr. Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information that would implicate Clinton, and deploying arguments of prosecutorial prerogative that have significantly changed the legal landscape. Like many others, we have found this exercise of prosecutorial power terribly troubling. Also troubling, however, is the difficulty we (and others) have had in identifying "neutral principles" of prosecutorial discretion that Starr violated. The standard criticisms of Starr's investigation do not meet that measure. The standard criticisms of the IC mechanism generally, though possessing greater force, are similarly unsatisfying. This essay, written from the perspective of two former federal prosecutors, springs from our effort to identify the fundamental shortcomings of the IC concept, particularly as manifested in the Starr investigation, and to decide whether efforts to cure those shortcomings with a new and improved version of the IC approach are warranted.
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In: Widener Law Symposium Journal, Band 5, S. 79
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In: New York University Law Review, Band 94 p. 171
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What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I'd like to speak in transnational terms, peeling off a distinctive set of potential "prosecutorial" contributions to democracy – as opposed to those made by other criminal justice institutions – is a challenge. Holding others – not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship. They also can can promote police compliance with legal and democratic norms. Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy. After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account. Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.
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In: Annual Review of Criminology, Band 1, S. 451-469
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The prosecution of criminal suspects is an integral part of a country's justice system. While substantial scholarly attention has been devoted to the study of the police and judges and their relevance to the rule of law, surprisingly little is known about prosecutors. The aim of this paper is to contribute towards filling this knowledge gap. We first demonstrate the rising importance of prosecutors for criminal justice systems around the world. We identify the independence of prosecution agencies from the other two branches of government as a centrally important characteristic and then proceed to analyze the determinants of de facto prosecutorial independence from a political economy perspective. We find that press freedom, the immunity of parliamentarians and belonging to the common law tradition are positively associated with higher de facto independence.
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