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April 12, 2016
"Accounting for Prosecutors"
The title of this post is the title of this interesting looking new paper by Daniel Richman now available via SSRN. Here is the abstract:
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.
April 12, 2016 at 05:50 PM | Permalink
Comments
While the article notes the trial as a public teaching moment, there is another way that the adjudicatory process can be educational -- the grand jury system Prosecutors can either treat a grand jury presentation as a rubber stamp (here is the evidence, now sign the true bill so that we can get on to the next case) or as a chance for a random sample of the public to participate in the criminal justice system (encouraging the grand jurors to ask questions so that they understand the case, the actions -- or failure to act -- of the police, and the crime problems of their community). When prosecutors choose the latter, the members of the grand jury become informed about their community -- its problems, whether the police department is competent. While they may not be able to talk about the facts of a given case to their friends and neighbors, they can talk to them about what they learned about the community -- helping to drive the debate about what needs to be improved.
Posted by: TMM | Apr 13, 2016 10:14:48 AM
