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September 7, 2016

"Non-Adversary Prosecution"

The title of this post is the title of this notable new paper by Eric Fish now available via SSRN. Here is the abstract:

American prosecutors are conventionally understood as having two different roles.  They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice.  But these two roles are at odds.  Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions.  But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.

This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all.  Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.

In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors.  The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments.   The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules.  The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.

The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles.  And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice.  But the prosecutor should never act as an adversary committed to winning for its own sake.  The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.

September 7, 2016 at 06:31 PM | Permalink


I would argue that the major social utility of the prosecutor is that it transfers the authoritarian streak in human nature into a culturally useful function. Aspiring tyrants need to engage in an apprenticeship somewhere and historically that has meant the military, trade and business, or the law. Occasionally a political tyrant comes out of the religious side of life but over the last one hundred years that route seems to have dried up. If the American prosecutor isn't foaming at the mouth, charging at poltergeists with his tin horn, casting illusions with verbal sophistry, and drinking the blood of innocents then in my view he isn't doing his job. He best go over there and harass all those people I don't like or else the people in their righteous indignation will toss him out of office and condemn him to the garret of the law school professorate.

Posted by: Daniel | Sep 7, 2016 6:52:54 PM

Lulz. Nicely done.

Posted by: Fat Bastard | Sep 7, 2016 7:38:11 PM

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