The Power and Discretion of the American Prosecutor

Abstract

Prosecutors are the most powerful officials in the American criminal justice system. The decisions they make, particularly the charging and plea-bargaining decisions, control the operation of the system and often predetermine the outcome of criminal cases. Prosecutorial power is vast and unrestrained, and the mechanisms that purport to hold prosecutors accountable are weak and often totally ineffective. In addition, the most important prosecutorial decisions are made behind closed doors – away from public scrutiny and thus immune from public accountability. The most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary. The deficiency of prosecutorial discretion lies not in its existence, but in the randomness and arbitrariness of its application. Even in prosecution offices that promulgate general policies for the prosecution of criminal cases, there is no effective mechanism for enforcement or public accountability. Self-regulation by prosecution offices is largely nonexistent or ineffective, and the United States Supreme Court has protected prosecutors from both public and judicial scrutiny. In this article, Professor Davis focuses on the exercise of prosecutorial discretion in charging and plea bargaining. She demonstrates how prosecutors bear the brunt of the responsibility for the race and class disparities in the American criminal justice system. She also discusses why the current mechanisms of accountability for prosecutors in the American democratic system are ineffective. Finally, she suggests measures for reform.