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September 8, 2018

"The Power of Prosecutors"

The title of this post is the title of this notable new article authored by Jeffrey Bellin now available via SSRN. Here is its abstract:

One of the predominant themes in the criminal justice literature is that prosecutors, not legislators, judges, or police, dominate the justice system.  Over 75 years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.”  In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors, not judges, police, or legislators, “are the criminal justice system’s real lawmakers.”  And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence.  It reveals a curious echo chamber enabled by a puzzling lack of dissent.  With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system,” has real consequences for criminal justice discourse.  Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes.  The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

September 8, 2018 at 11:21 AM | Permalink


Methinks the lady doth protest too much.

Posted by: restless94110 | Sep 9, 2018 3:36:07 PM

The sickest part is when prosecutors defend an obviously wrongful conviction and keep an innocent person behind bars for years, with no consequences for the prosecutor.

Posted by: William Jockusch | Sep 9, 2018 8:50:14 PM

Perhaps in a desperate quest to find a sufficiently different approach to the topic to garner attention, the author strains so hard to hammer square facts into his round-holed thesis that I found myself raging at the article. Getting irate at a law review article is not a common occurrence for me.

He defines "power" in a sufficiently limited way that he can claim that everyone is wrong about the overwhelming control prosecutors - especially federal ones - wield in the system. By his reckoning, Kim Jong Eun really isn't that powerful, because the people under him could refuse to shoot his enemies with antiaircraft guns or use nerve gas on his relatives.

One tidbit that jumped out on page 16: "For example, federal prosecutors wield little power over a person who robs a restaurant in Los Angeles, except if that person was previously deported or is carrying drugs." I would refer our pointy-headed academic to 18 USC 1951, the Hobbs Act, and the courts' expansive interpretation of what affects interstate commerce. See, e.g., U.S. v. McFarland, 264 F.3d 557, 558 (5th Cir. 2001) (defendant robbed convenience stores, but - as the 5th Circuit put it - "instead of being prosecuted by the State as would the perpetrators of hundreds of other similar robberies which occurred in the City of Ft. Worth in that year, McFarland was treated differently. Through the alchemy of federal prosecutorial discretion, a federal grand jury indicted McFarland for a count of 'interference with interstate commerce by robbery' (Hobbs Act) and a count for use of a firearm in commission of a federal felony (gun count) on each of the four robberies").

When the author spouts such ill-informed blather, it is hard not to consider the rest of the article (as well as his thesis) with a gimlet eye.

The "powers" possessed by the federal prosecutor includes turning virtually crime, no matter how prosaic, into a federal offense, and dissecting the life of any person the prosecutor may select until enough facts are found to indict for one or more of the 4000+ federal criminal statutes on the books. Of course there are other actors to push back, the skeptical and independent grand jury, the well-compensated, resource-laden and motivated public defender, and the federal judge willing to ignore statutory minimums that are oppressive and unfair. As well as the Justice Fairy, of course, who will sprinkle pixie dust on the defendant.

A 98% plus conviction rate (which compares to that in the People's Republic of China and, according to Michener, the Gestapo's kangaroo court in the Warsaw ghetto (97% conviction rate) suggests either that federal prosecutors are among the finest in history or that the system is warped.

SLP is an excellent blog, and my complaints about academic nonsense like "The Power of Prosecutors" are not a reflection on Doug Berman's great work.

Posted by: Tom Root | Sep 15, 2018 11:07:04 AM

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