Document Type
Article
Publication Title
Michigan Law Review
Publication Date
4-2018
ISSN
0026-2234
Page Number
835
Keywords
incarceration, prosecutorial power, criminal justice
Disciplines
Criminal Law | Law | Law Enforcement and Corrections
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 viewed as the criminal justice system's free agents, deploying the powers of their offices as they see fit to serve constituents, public safety, or, most broadly, the cause of justice. This Article uses the rapidly shifting views about 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.
Recommended Citation
Jeffrey Bellin,
Reassessing Prosecutorial Power Through the Lens of Mass Incarceration, 116 Michigan Law Review. 835
(2018)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1652