NCJ Number
170396
Journal
Prosecutor Volume: 31 Issue: 6 Dated: (November/December 1997) Pages: 25-27,38-39
Date Published
1997
Length
5 pages
Annotation
This last in a series of four articles that have traced the development of the American prosecutor from colonial days to the present discusses the discretionary power that has been gained by the prosecutor as a locally elected official independent of the judiciary.
Abstract
Twenty years after the Civil War, prosecutors had become a unique blend of the offices and historical influences that had preceded them. Like the private citizen in the English system, they could initiate those prosecutions they chose. Like the English attorney general, they could terminate prosecutions by informing the courts that the state was unwilling to proceed further. Because they were locally elected officials, they could apply the laws to their jurisdictions according to their own best judgments. Because prosecutors had been conferred discretionary authority by State constitutions or statutes, their decisions were virtually unreviewable. The controversy surrounding this discretionary power continues unabated even today despite a long history of case law to the contrary. Critics decry the weakening of the grand jury as an independent check on prosecution, and they oppose prosecution plea bargaining practices. Their attempts to limit discretion in the form of legislated sentencing guidelines, mandated sentences, habitual offender statutes, and other measures sometimes had just the opposite effect. Whether the prosecutor's discretionary power will prevail unchanged into the 21st century, given the victims' rights movement and the increased blurring of the decisionmaking authority of the judicial and executive branches, has yet to be determined, but the evolution of prosecutorial discretion is worthy of careful monitoring. 35 notes