Title: The Worldwide Accountability Deficitfor Prosecutors
Abstract: I. IntroductionProsecutors the world over must cope with an accountability deficit. Scholars have noted this deficit for years, but their proposals to confront the problem have either been too modest, or else they have been too unrealistic and thus have gone unheeded. Just as it was with bail reform in the 1960s and sentencing reform in the 1980s, it is time to set out on a path to greater accountability for prosecutors in the United States and beyond, one that is both realistic and bold enough to address the scope of the problem.The need for accountable criminal prosecutors runs deep. Prosecutors enforce the most serious moral commitments of a society, and control the most serious punishments that a government can impose, short of waging war.1 In democratic governments committed to the rule of law, the prosecutor must exercise this power responsibly and be able to demonstrate that fact to the public. A responsible exercise of power means judgments that are consistent with current public preferences and with fundamental, long-term legal principles. In short, the prosecutor must be accountable both to the people and to their laws.The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. The strategies used around the world to ensure that prosecutors apply the criminal law consistently with public priorities have proven to be a disappointment.2 This official, who exercises some of the most profound powers of government, also remains the most profoundly free to exercise individual discretion.This is not to say that prosecutors everywhere violate the law and the wishes of the people. A few do; most don't, or at least they don't most of the time. Prosecutors in many countries, including American prosecutors, pay careful attention to the power that goes with their everyday decisions - whether to decline or to charge, how to choose among available charges, whether to enter plea negotiations, what sentence to recommend, and so forth. Most prosecutors, in our experience, are conscientious public servants. This restraint, however, is based on individual virtue. Because individual responsibility is the origin of good behavior among prosecutors, it does not generate the level of public trust that one might expect in a government of laws.3 Both in the United States and elsewhere in the world, institutional strategies to guarantee prosecutor accountability all fall short of the mark.The accountability deficit that affects criminal justice in the United States is sometimes portrayed as an example of American exceptionalism. Many U.S. prosecutorial practices, including some routine and uncontroversial functions, are indeed seen as anathema in other highly developed legal systems.4 But the deeper issue of accountability is more similar than different from country to country. The challenge is particularly salient in countries where the criminal justice systems cope with the largest volume of cases.5While the need for prosecutor accountability is largely the same in many countries, the answers that various legal systems offer to this problem appear at first to be quite different. Prosecutor accountability in the United States builds on electoral accountability.6 The voters elect most prosecutors at the local level; this external check is designed to compensate for the shortcomings of weak judicial review and overbroad criminal codes in the United States.7By contrast, the rest of the world's criminal justice systems rely on internal bureaucratic accountability. Prosecutors join a centralized bureaucracy and then follow explicit articulated guidance in crucial areas of the job, enforced by regular internal review.8 One approach emphasizes external and popular checks on the prosecutor, while the other approach stresses internal and technical constraints on the prosecutor.Despite the design differences among these systems around the world, however, we believe that the two forms of accountability have more in common than casual observation or the existing scholarly literature suggest. …
Publication Year: 2010
Publication Date: 2010-10-01
Language: en
Type: article
Access and Citation
Cited By Count: 13
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot