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March 25, 2019

"Theories of Prosecution"

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

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors.  Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws.  Over the past two years, however, the conversation shifted.  With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought.  There is no widely-accepted normative theory of the prosecutorial role.  As a result, prosecutors are increasingly viewed as the criminal justice system’s free agents, deploying the powers of their office as they see fit to serve constituents, public safety or, most broadly, the cause of justice.

This Article uses the rapidly shifting views of prosecutors to explore normative theories of prosecution: what should prosecutors be doing?  It highlights the emptiness of the current “do justice” model, and proposes an alternative “servant-of-the-law” theory of prosecutorial behavior that could place real constraints on prosecutorial excess.  It also explores ways in which a servant-of-the-law model could, perhaps counterintuitively, contribute much-needed theoretical grounding to the progressive prosecution movement.

March 25, 2019 at 07:28 PM | Permalink


I am Deputy Prosecutor General and a research fellow doing my Doctorate from University of Karachi;
sir, by going through your article it transpire that their is no hard and fast theory regarding Prosecution; it means philosophers of law did not give any importance to Prosecution because if you see even in criminal justice system Police, Judiciary and Prison is consider as pivotal pillars of criminal justice system but no any importance is given to the prosecution and prosecutors; Why?

Posted by: Abdullah Rajput | Sep 10, 2019 4:52:29 AM

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