Unpacking the Relationship between Prosecutors and Democracy in the United States

Abstract

What implications does a commitment to democracy have for the regulation of American prosecutors? The answer is complicated, for three different reasons. First, it will depend on our ideas about democracy. In the United States there at least two very different clusters of ideas about democracy — democratic pluralism and participatory democracy — and they have different implications for how we should think about prosecutors. Second, the implications of any understanding of democracy for prosecutors will depend on what we want from prosecutors, and those desiderata vary widely. Reconciling democracy with prosecutors is one kind of task if our expectations for prosecutors are, loosely speaking, “adversarial,” and a different kind of task if our expectations are instead, loosely speaking, “inquisitorial.” Third, expectations for prosecutors do not just vary widely from person to person; most of us, as individuals, want conflicting things from prosecutors, because we have come to depend on prosecutors to mediate between conflicting expectations for the legal system as a whole. As a result, prosecutors blur key boundaries that structure our thinking about criminal justice, a fact that itself makes it more difficult to hold prosecutors accountable in any customary way. Despite — and to some extent because of — these complexities, a commitment to democracy in the United States implies certain imperatives for reforming prosecutors’ offices. One of those imperatives is to increase the demographic diversity of prosecutors; another is to reconsider the emphasis our legal culture increasingly places on flexibility and boundary-blurring; and still another is to give communities better tools for understanding and evaluating the day to day work of prosecutors’ offices.