Public prosecutors

SIGNIFICANCE: The prosecutor is one of the most powerful actors in the justice system because of the office’s broad discretionary powers to determine which cases will be pursued and which defendants will be permitted to plead guilty to lesser charges.

The prosecutor is the public official who acts as the attorney representing the government and the public in pursuing criminal convictions. The prosecutor possesses broad powers to determine which defendants to prosecute, what charges to pursue, and which cases to terminate through plea bargains. The prosecutor must oppose the defense attorney during trials and present sufficient and appropriate evidence to persuade a judge or jury to render a verdict of guilty.

The Prosecutorial System

The concept of the American prosecutor was drawn from English legal tradition, in which a representative of the king sought to persuade jurors that a particular individual should be charged and convicted of a crime. In the United States, prosecutorial responsibilities are divided among the various levels of government. Federal prosecutors are known as US attorneys. They are appointed to office by the president and are each responsible for prosecuting federal crimes in one of the ninety-four federal district courts throughout the United States. Within each courthouse, they are assisted with their tasks by teams of assistant prosecutors. Their work is often coordinated by the attorney general of the United States and the US Department of Justice.

At the state level, each state has an elected attorney general who, in most states, possesses the power to initiate prosecutions for violations of state laws. In three states—Alaska, Delaware, and Rhode Island—the attorney general oversees all local prosecutors. In most states, however, the focus of prosecutorial power is the local prosecutor. These local prosecutors are sometimes known as district attorneys , or states’ attorneys. In all states except Connecticut and New Jersey, local prosecutors are elected officials who have primary responsibility for investigating and prosecuting violations of state criminal laws within their counties. In Connecticut and New Jersey, local prosecutors are appointed and supervised by state officials. By contrast, local prosecutors in other states are accountable to the voters within their counties. They are usually visible political figures who seek to please and impress the voters with their efforts to combat crime.

Many attorneys use the office of county prosecutor as a stepping-stone to higher offices as judges, state legislators, or members of Congress. The prosecutor’s office serves this purpose especially well because of its high visibility in the local community and because the prosecutor can show tangible success in battling crime—an issue of widespread concern to voters. Moreover, prosecutors do not have to become involved in controversial issues that divide the community such as welfare spending or education. They can devote their time to publicizing their success in the battle against crime, which enjoys unified public support.

Because of the visibility and power of the local prosecutor’s office, political parties frequently devote significant energy and resources to battling one another during election campaigns for the prosecutor’s office. As a result, political leaders often select prosecutorial candidates based on their ability to raise campaign funds and their attractiveness to the voters rather than on their prior experience as attorneys. Attorneys who have never handled criminal cases before in their lives sometimes win elections as prosecutors. If their offices are anywhere but in rural areas, however, they usually have experienced assistant prosecutors who handle the steady flow of cases and teach them about criminal law. In small towns and rural counties, the local prosecutor may not have many assistant prosecutors, if any.

Because of prosecutors’ involvement in politics, political considerations sometimes affect their decisions. They may use their offices to provide jobs (as assistant prosecutors and investigators) for loyal members of their political party. They may prosecute vigorously any questionable activity by political opponents while turning a blind eye to wrongdoing by influential citizens or by their political supporters. Because no official supervises or commands the local prosecutors in most states, it is up to the local voters to ensure that prosecutors perform according to professional standards. Voters are the only ones who possess the power to remove most prosecutors from office.

Prosecutor Decision Making

Prosecutors possess broad powers. They can use their discretion to determine which defendants are charged, what charges are pursued, which plea bargains to approve, and what strategies to employ during trials. Prosecutors even possess the power to drop charges against defendants without providing any reasons. This power to drop charges cannot be stopped or reversed by any other official, not even a judge or the governor. The primary pressure that keeps prosecutors from having unchecked power is the risk that the public will be unhappy with their decisions and vote them out of office in future elections.

Prosecutors are responsible for many key decisions in the criminal process. They must evaluate the evidence brought to them by the police in order to determine which charges, if any, to file against each defendant. Prosecutors make recommendations about whether defendants should be released on bail. Studies show that judges are usually very deferential to prosecutors’ recommendations about whether bail is to be granted, the bail amount, and the conditions of release. Prosecutors also control the process for the grand jury by presenting evidence against the suspects that they have chosen without any defense attorneys in the courtroom to argue against the issuance of indictments. In states that do not use grand juries, prosecutors initiate charges against a defendant by filing an information describing the charges to be pursued based on the evidence thus far available. Prosecutors handle plea negotiations on behalf of the government and recommend sentences when defendants plead guilty. Prosecutors also develop trial strategies and determine how evidence will be presented to the jury for those few cases that are not terminated through plea bargains.

Prosecutors’ decision making is influenced by their need to please several constituencies. Because prosecutors’ jobs depend on public support, prosecutors typically try to develop good relations with the news media. They want news reports to show them as making tough, intelligent decisions in identifying and prosecuting criminal suspects. Prosecutors must also have good relationships with the police, because they must rely on the police to do a good job in making arrests and gathering appropriate evidence. Prosecutors do not want to displease police officers by dropping charges or agreeing to light sentences during plea bargaining , because the police then may be less enthusiastic and cooperative in investigating subsequent cases. Prosecutors also rely on good relationships with the local county commission, city council, or state legislature that provides the annual budget for the prosecutor’s office. If the prosecutors cannot please these elected officials, then they may receive inadequate resources in the following year’s budget. Although prosecutors have broad discretionary power, their relationships with political constituencies influence their decisions and actions.

Prosecutors’ decisions are also influenced by their need to process a steady flow of cases with their office’s limited resources. For most prosecutors, this situation helps to encourage their participation in plea bargaining. Most offices do not have the time, money, or personnel to bring every case to trial. Moreover, prosecutors gain definite convictions when they can negotiate a guilty plea. If cases go to trial, there is always a risk that unpredictable juries might not render guilty verdicts. Through plea bargaining, prosecutors gain quick convictions with a minimal expenditure of resources.

Plea Bargaining

Prosecutors usually hold the upper hand in plea bargaining because they can initially charge defendants with multiple offenses, even if they are not sure that they can prove all the charges. This gives the prosecutor the ability to apply pressure to the defendant by scaring the defendant with the prospect of multiple convictions and punishments if a guilty plea is not forthcoming. The US Supreme Court has decided that prosecutors can threaten defendants with additional charges during plea negotiations. Although the judge officially controls sentencing, most judges will routinely approve whatever sentence the prosecutor recommends as part of a plea agreement. Because more than 90 percent of cases terminate through plea bargains, the prosecutor effectively influences the sentences imposed on offenders in most cases.

The plea-bargaining process in many courthouses becomes streamlined through cooperative relationships that develop among prosecutors, public defenders, and judges. Frequently, the same assistant prosecutor, public defender, and judge are in the same courtroom day after day discussing plea bargains in one case after another. Before long, they come to understand one another’s assessments of the seriousness of specific kinds of crimes and of the appropriate severity of punishment for each crime. Once they develop common understandings about the sentences to be imposed for specific offenses or repeat offenders, they can quickly develop consistent plea agreements in each new case that arrives before them.

Prosecutors and the Adversary System

Because the American justice process employs an adversary system that pits prosecutors against defense attorneys, many critics fear that prosecutors are encouraged to seek convictions at all costs rather than examine each case carefully to determine whether someone arrested by the police is, in fact, guilty. In an adversary system, attorneys can become too focused on simply defeating the opponent rather than ensuring that justice is accomplished through the conviction of guilty defendants. There is a risk that attorneys, including prosecutors, will attempt to hide information from their opponents, even when that evidence might cast doubt on the guilt of a defendant and thereby increase the probability that an innocent person receives unjustified punishment.

In other countries (in Germany, for example), prosecutors are appointed government officials who are under the supervision of a national office. They have secure positions, and their decisions are less susceptible to political pressures. They are obligated to reveal any evidence that questions the defendant’s guilt, and their ultimate objective as professionals is to see that correct decisions are made. By contrast, as elected officials in an adversary system, American prosecutors are under pressure from the community to solve crimes. They may be blamed by the public and subsequently lose office if highly publicized crimes remain unsolved. This pressure may create incentives for prosecutors to pursue cases aggressively against defendants, even in instances in which the available evidence may be less than compelling. If prosecutors are unethical, their lack of the job security possessed by government-employee prosecutors in other countries may lead them to manufacture evidence against selected individuals simply to avoid public blame for unsolved crimes. Such problems are not widespread, but they have occurred with sufficient frequency over American history to raise questions about whether elected prosecutors in an adversarial system can make sufficiently objective decisions to avoid misuse of prosecutors’ broad powers.

Bibliography

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Eisenberg, Rachael and Allie Preston. "Progressive Prosecutors Are Not Tied to the Rise in Violent Crime." American Progress, 16 Oct. 2022, www.americanprogress.org/article/progressive-prosecutors-are-not-tied-to-the-rise-in-violent-crime/. Accessed 9 July 2024.

Heilbroner, David. Rough Justice: Days and Nights of a Young D.A. New York: Pantheon, 1990. Print.

Jacoby, Joan E. The American Prosecutor: A Search for Identity. Lexington: Lexington, 1980. Print.

McDonald, William F., ed. The Prosecutor. Beverly Hills: Sage, 1979. Print.

Nelson, Micheal and Samarth Taran. "Judging Prosecutors: Prosecutorial Discretion." Research & Politics, vol. 9, no. 4, 21 Nov. 2022, doi.org/10.1177/20531680221134999. Accessed 9 July 2024.

Stewart, James B. The Prosecutors. New York: Simon, 1987. Print.