Document Type
Article
Publication Title
California Law Review Online
Publication Date
Winter 2022
ISSN
1943-1791
Page Number
1
Keywords
criminal law, prosecutors, legal scholarship
Disciplines
Criminal Law | Law
Abstract
Bennett Capers' article Against Prosecutors challenges us to imagine a world where we "turn away from prosecution as we know it," and shift "power from prosecutors to the people they purport to represent." In this world, crime victims decide whether to prosecute their own cases, and public prosecutors play a subsidiary role, taking primary responsibility only for cases "where the state is truly a victim (such as tax fraud)." This leaves a large category of cases - victimless crimes - without any prosecutor at all; Capers singles out drug offenses as "the biggest examples." Without prosecutors championing these and analogous cases, there would be far fewer prosecutions, "quite possibly, reducing mass incarceration." Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a "[r]adical change," I find the focus on prosecutors in this context decidedly indirect. This follows from my distinct diagnosis of the drivers of criminal justice policy. While Capers acknowledges that "judges, legislators, [and] police play [a] role in the criminal justice system," he echoes a dominant theme in legal scholarship that "their power pales in comparison to that of prosecutors."
Recommended Citation
Jeffrey Bellin,
A World Without Prosecutors, 13 California Law Review Online. 1
(2022)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1658