The Prosecutor’s Evolution

To understand how “prosecutors” functioned during the private prosecution phase, we must understand early American court procedures and court roles. Although each colony differed in its terminology, procedures and structures, there were some basic similarities owing to the eventual dominance of the British legal system. ⁽⁵⁷⁾ While the British system operated on a “pure” private model, no American colony fully adopted it; instead, the colonies blended the private model with a public aspect. ⁽⁵⁸⁾ To prevent against excessive authority, however, they utilized decentralized processes, giving individual victims the most control. ⁽⁵⁹⁾ How much process also varied between colonies. In Massachusetts, for example, an organized, formal system existed. ⁽⁶⁰⁾ This contrasted with New York’s less formal and less respected court system. ⁽⁶¹⁾

Each colony operated a similarly structured court system. ⁽⁶²⁾ A single person, with authority to resolve minor matters and send more serious matters to the next higher court, entailed the first level. ⁽⁶³⁾ This individual went by different names in different places. ⁽⁶⁴⁾ Small towns might have one person serve the entire town while larger population centers utilized multiple individuals to hear and resolve matters. ⁽⁶⁵⁾ In this court, the people and the law interacted intimately and informally, something Professor Lawrence Friedman termed “low law.” ⁽⁶⁶⁾ Most cases began and ended at this stage. ⁽⁶⁷⁾ More serious matters such as high misdemeanors and felonies were sent to a grand jury associated with the county court. ⁽⁶⁸⁾ This was the formal colonial—and later state—court. ⁽⁶⁹⁾ Its procedures were more formal and only met certain times throughout the year. ⁽⁷⁰⁾ Usually, those sitting at this court had formal legal training. ⁽⁷¹⁾ Appeals from these courts and the most serious cases went to the highest court level. ⁽⁷²⁾ During colonial times, when there was no separation of powers, the highest court level consisted of the governor and his council. ⁽⁷³⁾ As a result, when this court met, it was at the colonial capital. ⁽⁷⁴⁾ This meant litigants and witnesses came from across the colony to this court for trial. ⁽⁷⁵⁾ One must remember that there was also no appeal as we presently think of them. ⁽⁷⁶⁾ As a case progressed through these three levels, each new level meant a new trial. ⁽⁷⁷⁾

When examining the role different people played in this court structure, it is important to delineate two important crime categories. The first is that of crimes against property and people. These ranged from murder to assault to burglary. ⁽⁷⁸⁾ In each instance there is an identifiable victim, someone with an interest in pursuing the case. ⁽⁷⁹⁾ These cases moved through the system based on victim desire and legal sufficiency. ⁽⁸⁰⁾ Generally, private attorneys represented the two sides. ⁽⁸¹⁾ For resolution, they had to rise to the middle level of courts. ⁽⁸²⁾ The second category includes moral offenses ranging from adultery to disorderly conduct or public drunkenness. ⁽⁸³⁾ Generally, these offenses were only prosecuted when they created social problems. ⁽⁸⁴⁾ Most colonial jurisdictions lacked the resources to prosecute such offenses because it required a public figure, paid by the colony. ⁽⁸⁵⁾ Prosecuting such offenses also required high functioning legal systems, meaning they had the resources to process cases. ⁽⁸⁶⁾ High functioning systems were necessary because most morals offenses were nonindictable, meaning that the lowest level court had jurisdiction to resolve the matter. ⁽⁸⁷⁾ Whether the offense was indictable or not determined which court actors performed which function.

In cases involving a victim, the victim initiated the process and was the “prosecutor.” ⁽⁸⁸⁾ They initiated cases by appearing before the “judge” of the lowest level court. ⁽⁸⁹⁾ Once before the “judge,” the “prosecutor” would present his claim. ⁽⁹⁰⁾ If the “judge” found the claim meritorious, and the “prosecutor” paid the requisite fee, the “judge” would order the defendant to appear. ⁽⁹¹⁾ Once the defendant appeared, the “judge” would hear the defendant’s version. ⁽⁹²⁾ Minor cases would be resolved immediately, or ignored completely, but more serious offenses would be bound over for the mid-level court. ⁽⁹³⁾ If the “judge” found the claim lacking, the “prosecutor” could locate another “judge” who might hold a different opinion. ⁽⁹⁴⁾ With this system, the victim’s main discretionary concern seems to be whether the possible sanction was worth the fee payment. Ultimately, the “prosecutor’s” discretion was unlimited. Even if the “judge” bound over the “prosecutor’s” case, the “prosecutor” could terminate the action by simply not appearing at the next court date. ⁽⁹⁵⁾ “Prosecutors” would often terminate the case due to the costs incurred with each step in the process and because the “prosecutor” and defendant often knew each other. ⁽⁹⁶⁾ This familiarity led to informal resolution, outside the court process. ⁽⁹⁷⁾ It also meant that someone could be “prosecutor” one day and defendant another day. ⁽⁹⁸⁾ In this sense, the courts preserved order but did not resolve conflict.

The Justice of the Peace played the most critical role when resolving “prosecutor” complaints. Justices of the Peace originated in the British system and eventually crossed the Atlantic to the colonies. ⁽⁹⁹⁾ The British Crown required dispute resolution mechanisms but did not want to pay for them. ⁽¹⁰⁰⁾ The monarchy devised a model whereby private complainants went to a local official for dispute resolution. ⁽¹⁰¹⁾ Had the Crown desired, it could have created a more centralized and professional prosecutorial corps. ⁽¹⁰²⁾ Instead, it opted for a local solution with resolutions based on community knowledge and practices. ⁽¹⁰³⁾ These Justices of the Peace conducted cursory investigations and adjudicated disputes. ⁽¹⁰⁴⁾ Rather than monetary payment, the British Crown rewarded Justices of the Peace with honor and authority. ⁽¹⁰⁵⁾

Justices of the Peace performed both investigative and adjudicative functions. ⁽¹⁰⁶⁾ Their investigative work was not modern investigative work but involved hearing from witnesses produced by the “prosecutor” and memorializing the statements. ⁽¹⁰⁷⁾ Often this entailed asking those involved in disputes relevant questions to determine responsibility. ⁽¹⁰⁸⁾ Once they gathered the information, they decided what to do with the case. They could find the case lacked sufficient evidence. If the offense was sufficiently serious, they could send it to the grand jury. ⁽¹⁰⁹⁾ If there was sufficient evidence of only a minor offense, the Justice of the Peace could impose a sanction. ⁽¹¹⁰⁾

Justices of the Peace heard a wide range of cases. Professor Steinberg recounts a typical day for a Philadelphia Justice of the Peace, known as an alderman. “On a typical day in 1848, one alderman heard six assault and battery cases, three larceny cases, three breach of ordinance cases, one firecracker case, one fast driving case and one case of throwing “torpedoes” on the stage of the Arch Street Theatre; committed three boys to the House of Refuge, issued two landlord’s warrants of eviction, two private notices and eight summonses; had one man examined for life insurance and one operated on for opthalmia; and conducted one marriage ceremony.” ⁽¹¹¹⁾ This variety and quantity brought crowds to the office daily and established close relationships between the community and the Justice of the Peace. ⁽¹¹²⁾

Despite performing investigative and adjudicative functions, the Justices of the Peace usually lacked formal legal training. Instead, these men obtained their positions due to their community standing. ⁽¹¹³⁾ They were men of “substance and power” in their communities. ⁽¹¹⁴⁾ Their social standing derived from reputation rather than education. Most Justices of the Peace could not read or write. ⁽¹¹⁵⁾ In some places, Justices of the Peace were local politicians. For example, in Philadelphia, the Mayor was selected from the Justices of the Peace. ⁽¹¹⁶⁾ Legal training for Justices of the Peace was not required because people generally did not trust lawyers. ⁽¹¹⁷⁾ The citizenry feared lawyers’ ability to use law as an oppressive tool and thus preferred the informal dispute resolution process provided by Justices of the Peace. ⁽¹¹⁸⁾

If the offense was sufficiently serious and the Justice of the Peace believed the evidence was sufficient, the Grand Jury would hear the case. These grand juries primarily served a screening function. They filtered out cases that were not worth pursuing or for which the “prosecutor” did not appear. ⁽¹¹⁹⁾ When the grand jury found the evidence sufficient and the case worthwhile, it would issue an indictment and those with legal training would handle the case. ⁽¹²⁰⁾ Most cases that came before the grand jury were dismissed because the “prosecutor” failed to appear. ⁽¹²¹⁾ These “prosecutors” either received the resolution they sought prior to the grand jury hearing the case or did not understand that their case had to progress from the justice of the peace to the grand jury. ⁽¹²²⁾ As time passed, those with legal training criticized the grand jury for allowing too many unworthwhile cases through the screening process. ⁽¹²³⁾

Grand Juries also served an important community function. Comprised of leading citizens, the grand jury served the community by identifying problems. ⁽¹²⁴⁾ Grand juries played a critical role as the United States transitioned from colony to nation. ⁽¹²⁵⁾ Grand juries oversaw local government functioning and held local officials accountable for their actions. ⁽¹²⁶⁾ They did this through “presentments” whereby the grand jury recommended criminal charges based upon the grand jury’s own investigation. ⁽¹²⁷⁾ Like the Justices of the Peace, the investigations grand juries performed entailed merely questioning witnesses that appeared before the grand jury. ⁽¹²⁸⁾ Like indictments, any presentment alleging criminal activity went to a legally trained attorney. ⁽¹²⁹⁾

The legally-trained attorney was responsible for drafting the formal legal document that charged the defendant. ⁽¹³⁰⁾ These attorneys ranged in ability. Some, such as those in New York, were prominent attorneys who listed the state among their clients. ⁽¹³¹⁾ Others lacked significant legal ability and could not find work elsewhere. ⁽¹³²⁾ Once they drafted the indictment, the attorney handled administrative duties, including scheduling the case, receiving the case file, and determining which cases received priority. ⁽¹³³⁾ This was the extent of their discretion, however. They had no interest in the outcome of the case. ⁽¹³⁴⁾ In fact, intervening in the case was perceived as the state sanctioning the “prosecutor’s” case. ⁽¹³⁵⁾ This was only warranted in cases of “great public interest.” ⁽¹³⁶⁾ Yet these attorneys did perform some legal work. They presented cases to the grand jury and, if no private attorney represented the “prosecutor,” then the publicly appointed attorney would represent the “prosecutor.” ⁽¹³⁷⁾ If no private attorney appeared for the defense either, the publicly appointed attorney would represent both sides in the case. ⁽¹³⁸⁾ Assuming private counsel appeared for the “prosecutor,” the publicly appointed attorney would prepare a case summary for the private attorney’s use during trial. ⁽¹³⁹⁾

Like the Justices of the Peace, these publicly appointed attorneys received income based on fees. ⁽¹⁴⁰⁾ In some places, the public attorney received fees based on the number of cases proceeding through the courts. ⁽¹⁴¹⁾ This type of arrangement incentivized minimal case screening and allowed litigants their day in court. ⁽¹⁴²⁾ Other places only allowed fees if a conviction resulted. ⁽¹⁴³⁾ These places prioritized close case scrutiny and promoted victimless crimes where the proof did not rely as much upon witness attendance. ⁽¹⁴⁴⁾ If the public attorney did not believe the case would result in a conviction, the public attorney did not pursue the case. ⁽¹⁴⁵⁾

Jared Ingersoll, whose son would sign the United States Constitution, provides an example of how these public attorneys functioned. ⁽¹⁴⁶⁾ Ingersoll initially served as the King’s Attorney for New Haven County in Connecticut. ⁽¹⁴⁷⁾ The office had been created in the early 1700s when there was concern about Connecticut’s loyalty to the Crown. ⁽¹⁴⁸⁾ To demonstrate their loyalty, the Connecticut legislature adopted a statute appointing an attorney in each county to represent the Crown’s interests with particular emphasis on “prosecut[ing] and implead[ing] in the lawe all criminal offenders, and [doing] all other things necessary and convenient to suppress vice and immoralitie.” ⁽¹⁴⁹⁾ When Ingersoll took office, he immediately increased the number of morals prosecutions. ⁽¹⁵⁰⁾ This was the only aspect of the work that Ingersoll could control. Victims initiated other criminal cases. ⁽¹⁵¹⁾ While his emphasis on morals prosecutions did not garner him public support, it enhanced his reputation with Connecticut’s ruling bodies. ⁽¹⁵²⁾ In May 1765 he was selected by the General Assembly as one of 34 Justices of the Peace and as a collector of the Stamp Act tax. ⁽¹⁵³⁾

While the public attorneys participated in every case, most cases were litigated by attorneys hired by the “prosecutor” and the defendant. Attorneys and judges rode circuits together, appearing in each town multiple times throughout the year. ⁽¹⁵⁴⁾ When the attorneys arrived in town, they would take cases from anyone who could afford their services. ⁽¹⁵⁵⁾ This meant that in one case the private attorney might represent the defendant and, in the next, represent the “prosecutor.” Much like the English barrister, these private attorneys did not identify themselves with one side or the other and simply presented the cases to the best of their ability. ⁽¹⁵⁶⁾ William Rawle, a prominent Philadelphia attorney who would later become the United States Attorney for Pennsylvania, exemplifies this. ⁽¹⁵⁷⁾ During parts of the 1780s, he maintained a journal about his law practice in which he recorded his daily activities. ⁽¹⁵⁸⁾ Rawle described a case where he served as defense counsel. Rawle’s client had assaulted and battered “a poor Ratcatcher.” ⁽¹⁵⁹⁾ Despite representing the defendant, Rawle seemed to sympathize with the victim, writing that his client “not very needfully assaulted and battered the poor Ratcatcher.” ⁽¹⁶⁰⁾ In his first case that day, Rawle represented Rogers, whom he referred to as a “vile fellow.” ⁽¹⁶¹⁾

One final actor occasionally appeared in the process: the state Attorney General. Prior to Independence, each colony had its own Attorney General. ⁽¹⁶²⁾ The Attorney General represented the English Attorney General in that particular colony and handled any matter necessary to protect the Crown’s interests. ⁽¹⁶³⁾ This included treason and revenue cases. ⁽¹⁶⁴⁾ They also oversaw the work performed by other public officials and provided legal advice to the royal Governor. ⁽¹⁶⁵⁾ Following the Revolution, however, the Attorney General lost prestige because of the position’s close relationship to the Crown. ⁽¹⁶⁶⁾ Local officials assumed responsibility for all criminal prosecutions and the Attorney General only had the ability to supervise and advise. ⁽¹⁶⁷⁾

Nothing required the colonial and early American criminal court system to function this way. The fact that it did so resulted from a confluence of factors. From an economic perspective, the private prosecution model proved cost efficient. ⁽¹⁶⁸⁾ Litigants bore the financial burden and paid for the system. ⁽¹⁶⁹⁾ Those employed by the system served only part-time and were compensated by the fees. ⁽¹⁷⁰⁾ From a political perspective, the private prosecution model kept the state at arm’s length, assuaging the citizenry’s fears of governmental tyranny. As Steinberg noted, the prevailing ethos was that the government should not intervene in typical cases. ⁽¹⁷¹⁾ Private litigants had the power to initiate and conclude cases at their discretion, meaning justice was in the community’s hands, rather than the government’s. From a social perspective, this was how the colonists wanted it. Prosecution was a local matter based on local values. ⁽¹⁷²⁾ They did not want outsiders dictating local priorities. As Ingersoll’s example demonstrates, even in morals cases, vigorous enforcement did not lead to popular support. ⁽¹⁷³⁾ Ingersoll served as a Crown representative. ⁽¹⁷⁴⁾ To the people, this was too strong an intervention. Grand Juries also demonstrate this phenomenon when, during the Revolutionary Era, they refused to indict colonists protesting British policies. ⁽¹⁷⁵⁾ Ultimately, the American system supplied informal, pragmatic dispute resolution. Combatting crime, as it is thought of today, was not a priority.

Even though this system emerged from the early American experience, the system had its critics. Complaints emerged about the public attorney, the Justice of the Peace, and the Grand Jury. People recognized the lack of legal talent in the public attorney’s office. ⁽¹⁷⁶⁾ They felt it gave paid defense counsel an unfair advantage in court. ⁽¹⁷⁷⁾ Judges in the higher courts also complained about the Justices of the Peace and the Grand Jury. ⁽¹⁷⁸⁾ The lack of formal legal training for these roles impaired the screening function by allowing too many unworthy cases to reach the formal court stages. ⁽¹⁷⁹⁾

Social changes also necessitated systemic changes. Violence erupted in larger communities, overwhelming the private prosecution model. ⁽¹⁸⁰⁾ This caused people to seek greater governmental involvement in law enforcement. ⁽¹⁸¹⁾ Rather than the informal, part-time law enforcement of the colonial and early American eras, professional police forces developed in the mid-nineteenth century. ⁽¹⁸²⁾ The new police forces resulted in a sharp increase in arrests. ⁽¹⁸³⁾ The minor public attorney function could not handle the significant caseload increase. ⁽¹⁸⁴⁾ The victim became less relevant as a new phenomenon of public prosecution emerged. ⁽¹⁸⁵⁾ They were paid by the government, rather than by fees and obtained their jobs through election rather than appointment. ⁽¹⁸⁶⁾ This change led to political, rather than private, prosecution.

As the nation expanded west during the nineteenth century, the “public attorney” function traveled with it. States statutorily authorized the role and devised different appointment methods. ⁽¹⁹²⁾ A few retained appointment by local judges. ⁽¹⁹³⁾ Other states permitted the governor, the legislature or the state supreme court to appoint the prosecutor. ⁽¹⁹⁴⁾ In these latter states, many perceived it as a governmental attempt to exert political influence over local concerns. ⁽¹⁹⁵⁾ They argued for local prosecutorial elections to insulate prosecutors from state-level partisan political battles. ⁽¹⁹⁶⁾

At the same time, the nation moved towards greater democracy. ⁽¹⁹⁷⁾ Few public officials were actually elected. To make public officials more accountable to the people, the public demanded that local officials such as judges and county sheriffs be elected. ⁽¹⁹⁸⁾

Significant social upheaval corresponded with the move toward more democratic accountability for public officials, especially in urban areas. ⁽¹⁹⁹⁾ Places relying on privately initiated prosecution discovered that the private prosecution model failed to adequately address the problem. ⁽²⁰⁰⁾ As a result, people resorted to increased state control over the law enforcement function by creating professional police forces. ⁽²⁰¹⁾ Professor Steinberg identifies two important consequences of this decision. ⁽²⁰²⁾ First, it created two distinct groups of people: those under suspicion of public disorder and those who were not. ⁽²⁰³⁾ Naturally, the police focused on the former. ⁽²⁰⁴⁾ Second, these new police forces possessed the power to arrest. ⁽²⁰⁵⁾ This meant that the state, not a private citizen, became the initiating force behind criminal cases. ⁽²⁰⁶⁾

To deal with the large influx of cases, the “public attorney” role had to expand to become the prosecutor. This appears in court decisions from the transitional time period. In an 1809 Kentucky assault case, the grand jury’s indictment failed to include the prosecutor’s name as required by statute. ⁽²⁰⁷⁾ In granting the defendant’s motion to identify the prosecutor or, in the alternative, dismiss the case, the court wrote:

By 1847, in Mississippi, a defendant indicted for forgery raised the same objection. ⁽²⁰⁹⁾ The court noted that the public prosecutor has the statutory duty to identify the prosecutor’s identity on each indictment. ⁽²¹⁰⁾ The court defined an indictment as “a criminal prosecution, based on the written accusation of either a private or a public prosecutor, and preferred to the grand jury, and by them indorsed on the back “a true bill,” and returned into court.” ⁽²¹¹⁾ Recognizing that the District Attorney is the prosecutor, the court wrote:

As these two cases demonstrate, by the mid-nineteenth century, courts recognized that public prosecutors acquired more authority, supplanting private prosecutors, even in cases where the private prosecutor may not have desired to proceed.

The switch to popular election made public prosecutors an instrument of social control, a tool of the state. ⁽²¹³⁾ During this time, working on behalf of the state meant working on behalf of political parties. No one worked for the government who did not also work for the controlling political party. By aligning themselves with a wider political organization, prosecutors had to consider more than the case’s merits or the victim’s interests. Political considerations became a significant factor in discretionary decision-making. Not only did the citizenry embrace this change but demanded vigorous prosecution. ⁽²¹⁴⁾

During this time, prosecutors gained discretionary decision-making authority in charging and in plea bargaining. Prosecutors became the grand jury’s gatekeeper. ⁽²¹⁵⁾ Whenever the grand jury heard cases, the prosecutor examined witnesses and explained the law to the grand jurors. ⁽²¹⁶⁾ This permitted them to influence how the grand jury perceived the case. If the grand jury decided in a manner contrary to the prosecutor’s wishes, the prosecutor could decide not to pursue the indictment. ⁽²¹⁷⁾ Once a case reached court, prosecutors offered defendants leniency in exchange for a guilty plea. ⁽²¹⁸⁾ Showing leniency insulated defendants from the harshness of the state-dominated prosecutorial apparatus. ⁽²¹⁹⁾ With these powers, prosecutors effectively assumed both the grand jury and justice of the peace functions.

Different prosecutors used their discretionary authority differently. Though this discussion focuses on state-level prosecutors, a federal prosecution during this time period illustrates how changing prosecutors could change outcomes. In St. Louis, during the early 1870s, a group of whiskey distillers and United States government revenue collectors conspired to defraud the United States government of millions of dollars of revenue. ⁽²²⁰⁾ Much like state and local government, federal government employment relied upon political affiliation. ⁽²²¹⁾ This meant that the United States Attorney for the Eastern District of Missouri, who was responsible for prosecuting the frauds, showed little interest in prosecuting his political associates. ⁽²²²⁾ His reluctance to do so led to his removal and resulted in an outsider’s appointment. ⁽²²³⁾ The outsider aggressively pursued the frauds until he unearthed evidence against the President’s personal secretary. ⁽²²⁴⁾ Simply changing who filled the role, changed the case’s trajectory.

Cases like this helped political party leaders discover that utilizing prosecutorial political authority could advance the party’s political interests. ⁽²²⁵⁾ Prosecutors had the ability to disperse favors and enforce party discipline. ⁽²²⁶⁾ They could indict political rivals, threaten indictments against those who considered opposing the party, and ignore indictments returned against party loyalists. ⁽²²⁷⁾ Professor Steinberg recounts how, after a newly elected District Attorney took office, his staff found hundreds of indictments that never made it to court. ⁽²²⁸⁾ Instead, the indictments remained, awaiting use should the indicted defendant defy party wishes. ⁽²²⁹⁾ They could also appeal to key segments of the electorate through their decisions. ⁽²³⁰⁾ By showing leniency, they could gain popular support when necessary. ⁽²³¹⁾ Obtaining guilty pleas also had the ancillary benefit of increasing the office’s conviction rate. ⁽²³²⁾

Of course, the political party could only use this power so long as the voters recognized the prosecutor’s successes. This brought prosecutors squarely into the public sphere. ⁽²³³⁾ News media reported how prosecutors handled criminal cases in court and whether or not they obtained guilty verdicts. ⁽²³⁴⁾ Conviction equaled success. ⁽²³⁵⁾ This meant that, to boost conviction rates, prosecutors targeted those without financial resources or the social power to defend themselves. ⁽²³⁶⁾ Actual guilt or innocence was secondary. ⁽²³⁷⁾ This was particularly important in high profile cases where a conviction could launch the prosecutor to higher office. ⁽²³⁸⁾

In her article on the historical development of public prosecutors, Carolyn Ramsey describes the political duel that occurred between two assistant prosecutors who sought election when the incumbent decided not to run. ⁽²³⁹⁾ The two assistants jointly pursued a prosecution against several alderman who allegedly accepted bribes during the construction of a Broadway street car line. ⁽²⁴⁰⁾ One assistant prepared the cases and the other delivered many of the closing arguments. ⁽²⁴¹⁾ When they opposed each other in the election, “respectable” newspapers such as the New York Times endorsed the assistant who prepared the cases and labeled the other as associated with the political machines. ⁽²⁴²⁾ The latter ultimately prevailed and proved the New York Times correct when he dismissed the remaining aldermanic bribery cases. ⁽²⁴³⁾ The machine-backed prosecutor also refused to act on indictments, making decisions based on personal benefit and leniency. ⁽²⁴⁴⁾ When the prosecutor asserted that he intended to save scarce prosecutorial resources for the most significant cases, the media was not convinced. ⁽²⁴⁵⁾ At the next election, the assistant who prepared the bribery cases again ran, again associating his former colleague with the political machines. ⁽²⁴⁶⁾ At the same time, the challenger asserted his independence from the political machines. ⁽²⁴⁷⁾ These two electoral contests further reveal the political prosecutor at work. The winner of the first contest “represented” the less respectable portion of society, those Professor Steinberg identified as the “suspect” group. ⁽²⁴⁸⁾ Conversely, the challenger “represented” the respectable portion of society. ⁽²⁴⁹⁾

Beyond their discretionary power, prosecutor offices offered political parties a “dumping ground” for political loyalists. ⁽²⁵⁰⁾ Increased caseloads required assistant prosecutors. Like those elected, those who worked in the office possessed political ambitions. Starting as an assistant could lead to advancement as the elected prosecutor. ⁽²⁵¹⁾ To ensure the assistants remained loyal, those hired had to have proper political connections. ⁽²⁵²⁾ These assistants shared certain qualities. They entered the office early in their career and remained a short time before advancing to better positions. ⁽²⁵³⁾ One reason for this was that the assistants received little pay. ⁽²⁵⁴⁾ Instead of pay, they received political rewards when they influenced the outcomes of cases or protected their party’s political interests. ⁽²⁵⁵⁾ Ultimately, the low pay and low prestige created an office of people who knew more about politics than law. ⁽²⁵⁶⁾

Not surprisingly, the major critique of the political prosecutor was the connection to the political system. As demonstrated through hiring practices and decision-making considerations, partisan, electoral politics played a considerable role. Those supporting the favored party received benefits while those opposed faced persecution. Interestingly, however, there appears to be a tenuous balance between the competing partisans that resulted in both the “respectable” and the “suspect” classes gaining power, albeit at different times.

Recognition that partisan allegiance could have a harmful effect on justice administration appeared quickly. For example, in Ohio, newspapers reported how one prosecutor, in the months before an election, refused to prosecute political allies. ⁽²⁵⁷⁾ Aware of such instances, one Ohio legislator questioned whether selecting prosecutors was better left to someone other than the electorate. ⁽²⁵⁸⁾ While nothing resulted from the legislator’s inquiry, Ohio newspapers regularly reported that prosecutors acted on behalf of political allies rather that in the interests of the people as a whole. ⁽²⁵⁹⁾

People also quickly recognized that hiring people based on political affiliation rather than legal ability resulted in ineffective and incompetent representation. This meant that in the most serious cases the victim or victim’s family would hire their own representation to prosecute the case. This private prosecutor worked with the public prosecutor, but the private prosecutor took charge. ⁽²⁶⁰⁾ In a sense, the private prosecutor model merged with the political prosecutor model. Savvy defense attorneys took note of this, however, and argued that the private prosecutor’s interest was vengeance rather than truth or justice. ⁽²⁶¹⁾ Once defense attorneys began making these arguments, many state legislatures noticed and responded by prohibiting victims from hiring private prosecutors. ⁽²⁶²⁾

Newspapers and legislators were not the only people who observed the flaws presented by political prosecution; defendants did as well. Burdened with cases from both police and political overseers, prosecutors confronted significant caseload pressure. As Professor Steinberg notes in his study of the transition away from political prosecution, a newly elected prosecutor found unacted upon indictments simply laying around the office. ⁽²⁶³⁾ To reduce the caseload pressure, prosecutors made deals with defendants. Defendants learned that the system was not about presenting a defense or administering justice but about manipulating the system to get the best deal possible. ⁽²⁶⁴⁾

Despite these critiques, the prosecutor’s political connection provided some measure of representation to all societal groups. The political machines recognized the prosecutor’s discretionary power and sought to use it to the machine’s advantage. This made prosecutorial elections highly contested. The “respectable” class had their candidate and the “suspect” class had their candidate. Whichever candidate prevailed represented their political patron’s interests. As Professor Ramsey noted in her study of New York City prosecutors, when the “suspect” class’s candidate won, the prosecutor did not pursue as many criminal cases. ⁽²⁶⁵⁾ While the “respectable” class decried this as laziness and inattention, the “suspect” class argued that they wished to preserve resources for the most serious cases. ⁽²⁶⁶⁾

By the end of the nineteenth century, the Progressive movement began, and its sweeping social agenda affected criminal prosecution as well. ⁽²⁶⁷⁾ Demand for an independent prosecutor who would use discretion for the public good increased. ⁽²⁶⁸⁾ This transformed the prosecutor into a crime fighter who protected the public and provided law and order. ⁽²⁶⁹⁾ The transformation emerged from private organizations who committed themselves to rooting out corruption and immorality. ⁽²⁷⁰⁾ They investigated cases and brought them to the prosecutors. ⁽²⁷¹⁾ They also created public pressure, making it difficult for prosecutors to refuse the cases. ⁽²⁷²⁾ These groups received assistance from inside the prosecutor’s office too. Professor Steinberg recounts how William Travers Jerome utilized his family name and its connection to Tammany Hall to get a job in the District Attorney’s office after graduating from law school. ⁽²⁷³⁾ He did not perform as expected when he pursued an assault case against a Tammany district boss. ⁽²⁷⁴⁾ While forced to resign, he would later return as an independent prosecutor, having learned from his experience. ⁽²⁷⁵⁾

Throughout the twentieth century, prosecutors, for the most part, disconnected themselves from the political connections that dominated their 19 ^th-century decision-making. They established their independence by taking more control over their charging authority. Over time, prosecutors developed strategies to utilize their discretion efficiently.

Public demands for increased morals prosecutions forced prosecutors to adapt. ⁽²⁷⁹⁾ Private agencies investigated and presented cases with strong evidence to prosecutors. ⁽²⁸⁰⁾ It did not take long for prosecutors to realize they had more success with “good” cases than prosecuting every case the police brought to them. ⁽²⁸¹⁾ This added layers of complexity to the prosecution function. Roscoe Pound and Raymond Moley both observed this in the twentieth century’s early decades. Pound perceived the American prosecutor as combining investigative, charging, preparing, and advocating functions. ⁽²⁸²⁾ He noted that previously the victim, attorney general, solicitor and advocate from the English system performed these diverse functions. ⁽²⁸³⁾ Similarly, Moley noted prosecutors must possess both the investigator’s skills and the lawyer’s skills. ⁽²⁸⁴⁾ To accomplish these tasks, prosecutors needed to organize their office, acquire permanent personnel, and divide labor. ⁽²⁸⁵⁾ These requirements opened the door for professional prosecutors as most attorneys entering office did not enter office with such things.

Courts also quickly noticed prosecutors possessed significant charging discretion and how prosecutors used this discretion impacted the reliability of trials. ⁽²⁸⁶⁾ While other courts referenced this concern first, the United States Supreme Court most famously commented about the potential problem in Berger v. United States. ⁽²⁸⁷⁾ The United State government charged Berger and others with counterfeiting bank notes. ⁽²⁸⁸⁾ According to the Supreme Court, the government did not have a strong case. ⁽²⁸⁹⁾ During the trial, the assistant United States Attorney presenting the case engaged in several foul blows. ⁽²⁹⁰⁾ Most focused on a particular witness whom the prosecutor believed would connect Berger with the conspiracy. ⁽²⁹¹⁾ During the testimony, the prosecutor misstated facts, put words into the witness’s mouth, stated facts in questions without evidentiary support, and then cross examined based on these unsubstantiated statements. ⁽²⁹²⁾ The prosecutor highlighted the cross examination during his closing argument. ⁽²⁹³⁾ According to the Court, “The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” ⁽²⁹⁴⁾ Following this conclusion, the Court turned to the prosecutor’s role. ⁽²⁹⁵⁾ Justice Sutherland wrote:

Sutherland continued,

While this would eventually be read as encompassing a general duty, Justice Sutherland, in the next sentence, turned to the prosecutor’s role in court, stating:

Consequently, the Court’s concern was with a prosecutor’s trial conduct and not anything outside of that context.

Following Berger, prosecutors became “ministers of justice” but what that meant for how prosecutors should perform their role proved ambiguous. Justice Sutherland recognized the concomitant duties of aggressive prosecution and protecting innocence. ⁽²⁹⁹⁾ Legal scholars attempted to discern the balance. Some presented clear duties: ascertain the facts, convict the guilty and protect the innocent from conviction. ⁽³⁰⁰⁾ Others saw more ambiguity and imposed greater burdens, including ensuring that the basic element of an adversarial process appear in each trial. ⁽³⁰¹⁾ Still others prescribed a more nebulous formulation, placing prosecutors somewhere in the middle of a neutral judge, an advocate, and a defense attorney. ⁽³⁰²⁾

If legal scholarship created confusion, then prosecutorial practice did little to bring clarity. Social scientists observed prosecutorial behavior and recognized that different prosecutors perceived their role differently, striking inconsistent balances between their advocacy role and their minister of justice role. Jacoby, in her study of multiple prosecutor offices, observed that some offices adopted a conservative, or legalistic, approach to their office. ⁽³⁰³⁾ They rarely employed discretion and prosecuted nearly every case presented to the office. ⁽³⁰⁴⁾ This prosecutor is a remnant of the political prosecutor. A second category exemplified the professional prosecutor, who managed to switch roles as the criminal process progressed. ⁽³⁰⁵⁾ At the outset they played a judicial role, determining whether a given case was worthwhile prosecuting. ⁽³⁰⁶⁾ Then, once the case entered the court system, switched to an advocate. ⁽³⁰⁷⁾ Even within this category, however, prosecutors struck the balance differently. Some saw themselves in a more adversarial posture, promoting “law and order” and “public safety.” ⁽³⁰⁸⁾ In San Diego, California, during the 1970s, individual prosecutors could exercise little discretion when resolving cases. ⁽³⁰⁹⁾ All plea negotiations had to be approved by high-level assistants. ⁽³¹⁰⁾ Only rarely did such negotiations occur. ⁽³¹¹⁾ By contrast, in Alameda County, California, during the same time period, prosecutors adopted a “magisterial” approach. ⁽³¹²⁾ Prosecutors embraced their ability to reconsider cases as the system progressed. ⁽³¹³⁾ They negotiated cases in moderated and objective fashion. ⁽³¹⁴⁾ A third model, which foresaw how prosecutors would expand upon their discretionary authority, cast prosecutors as policymakers who used their position for social, economic, legal or political change. ⁽³¹⁵⁾

As prosecutors sought to balance these dual roles, the United States Supreme Court redefined criminal procedure. Its decisions provided criminal defendants protections and vacated convictions when protections were not provided. These included the right to counsel, followed by the requirement that counsel be effective. ⁽³¹⁶⁾ It included the requirement that prosecutors provide the defense with exculpatory information. ⁽³¹⁷⁾ The Court also created a whole body of search and seizure law and confession law. ⁽³¹⁸⁾

These procedural protections further complicated the prosecutorial decision-making calculations. New decisions regarding search and seizure and confessions required prosecutors to further oversee investigative activity. ⁽³¹⁹⁾ They became counselors to law enforcement, advising them on which practices were constitutional and which were not. ⁽³²⁰⁾ Not all law enforcement agencies heeded this advice, however, and some agencies became more trusted than others. ⁽³²¹⁾ Which agency conducted the investigation could affect the charging decision.

The changing rules also proved challenging for prosecutors. Complaints about misconduct emerged, especially in the disclosure of exculpatory evidence. Prosecutors who adopted a win-at-all-costs mentality suppressed exculpatory evidence, hoping to gain trial advantage. ⁽³²²⁾ Other prosecutors struggled to apply the discovery rules to individual cases. ⁽³²³⁾ This proved especially challenging because, over time, the scope and complexity of criminal investigations exponentially increased the amount of information that was potentially discoverable. ⁽³²⁴⁾ For example, in the 1993 World Trade Center Bombing case, once the trial had concluded, Assistant United States Attorney Patrick Fitzgerald learned about recorded statements made by one of the government’s incarcerated witnesses to Bureau of Prisons officers. ⁽³²⁵⁾ Erring on the side of caution, Fitzgerald disclosed the problem. ⁽³²⁶⁾ To guard against this type of problem, some prosecutors adopted “open file” policies where defense attorneys could simply view the entire case file. ⁽³²⁷⁾ With different prosecutors adopting different perspectives, people began defining the prosecutor’s duty to do justice as consisting of doing nothing that would undermine any component of the American criminal justice system. ⁽³²⁸⁾

Complex laws, complex cases, and complex decisions required people devote more time to criminal prosecution. Rather than merely try cases as private prosecutors did or remain until the next election as political prosecutors did, attorneys began making prosecution their career. ⁽³²⁹⁾ This attracted more talented attorneys with better educations and no interest in political advancement. ⁽³³⁰⁾ Incumbent elected prosecutors devoted more attention to hiring, preferring merit to political connections. ⁽³³¹⁾ For example, in New York City, since 1942, there have been only four elected District Attorneys. ⁽³³²⁾ Similarly, since 1962, Orleans Parrish, in Louisiana, has had only five district attorneys. ⁽³³³⁾ Jurisdictions like these demonstrate not only the careerist nature of prosecution that emerged but how prosecutors disconnected themselves from partisan political battles and rendered prosecutor elections relatively meaningless. ⁽³³⁴⁾

As these independent, professional prosecutors took office, they professionalized their offices. Offices moved from part-time assistants to full-time assistants. ⁽³³⁵⁾ They also created internal office structures to channel and oversee prosecutorial decision-making, particularly in case screening. ⁽³³⁶⁾ Some offices separated charging units from trial units. This separated the dual roles of magistrate and advocate. ⁽³³⁷⁾ Yet, by focusing their attention on the charging decision, questions arose about how prosecutors reached this decision. Some questioned whether a prosecutor’s personal opinion on guilt should matter. ⁽³³⁸⁾ Other prosecutors differed about which cases were “worth” pursuing. ⁽³³⁹⁾ Other offices avoided these questions by establishing vertical prosecution units that specialized in certain crime types. ⁽³⁴⁰⁾ Some units focused on crimes such as sex crimes or homicide. ⁽³⁴¹⁾ Prosecutors who worked in these areas became subject-matter experts in their case types. ⁽³⁴²⁾ These divisions occurred more in urban jurisdictions, rather than rural, because urban offices had more cases and more assistants. ⁽³⁴³⁾

Ultimately, while political prosecutors were associated with their political activity, professional prosecutors were identified as law enforcers. ⁽³⁴⁴⁾

Critics focused on the prosecutor’s law enforcement mentality in three ways. First, they asserted that prosecutors possessed too much power and needed to be restrained. ⁽³⁴⁵⁾ Second, while the “minister of justice” model was to guide professional prosecutorial decision-making, it proved to be too ambiguous to be much use. Finally, by taking a professional approach, not considering the political implications of their decisions, prosecutors became too disconnected from the community and ultimately defined justice as securing conviction at all costs. Concern about the lack of community connection led prosecutors to focus on specific crime problems communities identified.

As prosecutors considered their role and comprehended their authority, professional prosecutors learned to leverage the system to their benefit. As this occurred, prosecutors tipped the balance between themselves and defense attorneys in the prosecutor’s favor. ⁽³⁴⁶⁾ During the political stage, defense attorneys possessed greater ability and achieved greater success. ⁽³⁴⁷⁾ As prosecutors became more professional, however, they became more skilled and began dominating the criminal court system. ⁽³⁴⁸⁾ By tipping the balance in their favor, prosecutors established a system based on the presumption of guilt, rather than the presumption of innocence. ⁽³⁴⁹⁾

Prosecutors employed various means to tip the courthouse balance of power in their favor. First, they gained prominence over police departments. ⁽³⁵⁰⁾ Police departments became dependent upon prosecutors to file criminal charges in cases where the police made arrests. With prosecutors demanding quality cases, the police were forced to improve their evidence collection techniques and to work collaboratively with prosecutors to develop strong cases. ⁽³⁵¹⁾ Prosecutors also used their charging discretion to acquire power. Taking advantage of new broadly-worded criminal laws passed by legislatures, prosecutors filed more cases. ⁽³⁵²⁾ The caseload increase severely impacted the quality of representation defense attorneys could provide. ⁽³⁵³⁾ The large number of high-quality cases led defense attorneys to develop a plea bargain mentality. ⁽³⁵⁴⁾ For prosecutors, a score-keeping mentality developed. ⁽³⁵⁵⁾ Like the political prosecutors, professional prosecutors won re-election based on soaring conviction rates. ⁽³⁵⁶⁾ Good prosecutors only filed good cases and secured convictions in those cases. ⁽³⁵⁷⁾ The pressure to win pushed prosecutors to develop case processing strategies to induce guilty pleas. ⁽³⁵⁸⁾ First, prosecutors overcharged cases by charging the most serious offense for which they had probable cause while knowing there was not proof beyond a reasonable doubt. ⁽³⁵⁹⁾ These prosecutors then offered a “reduced” charge in exchange for a guilty plea. ⁽³⁶⁰⁾ Risk-averse defendants entered guilty pleas. ⁽³⁶¹⁾ Second, prosecutors imposed what some termed a “trial tax.” ⁽³⁶²⁾ By pleading guilty, defendants received a lesser sentence than if they elected to exercise their constitutional right to a trial. At times, the discount encouraged even factually innocent defendants to plead guilty. ⁽³⁶³⁾

While prosecutors saw their advantageous use of the court process as justice, others perceived such practices as unjust. These divergent views highlighted the ambiguous nature of justice and that holding prosecutors to a “justice” standard provided little guidance for prosecutorial decision-making. ⁽³⁶⁴⁾ Some saw convicting everyone as justice while others saw protecting the defendant’s rights as justice. ⁽³⁶⁵⁾ Others critiqued the justice notion as failing to distinguish prosecutors from any other legal actor. ⁽³⁶⁶⁾ At various times people referred to judges, police and all lawyers as ministers of justice. ⁽³⁶⁷⁾ Ultimately, the notion of prosecutors as ministers of justice provided some broad aspirational goals but gave no criteria for how prosecutors should decide what is just in any particular case. ⁽³⁶⁸⁾

Overall the move to professionalization disconnected prosecutors from the communities they purportedly served. Disparate notions of justice permitted prosecutors to explain any decision as “just.” Securing high conviction rates generally satisfied the public and assured re-election as often as the incumbent desired. ⁽³⁶⁹⁾ The high volume of cases also meant that, for nearly every criminal case, few in the public even remotely knew what prosecutors did. ⁽³⁷⁰⁾ During the political stage, prosecutors were accountable to the people through party affiliation. Voters knew electing a person as district attorney meant party loyalists would fill the assistant ranks. ⁽³⁷¹⁾ Once party affiliation was removed, prosecutorial political activity dropped and the connection to community disappeared. ⁽³⁷²⁾ Ultimately, this means prosecutors had nothing holding them accountable for their decisions. ⁽³⁷³⁾

What remained of the community connection led prosecutors to focus on particular crime problems. At different times, in different places, different prosecutors identified crime problems that they could address through prosecution. In New York, in the 1930s, Thomas Dewey, as district attorney, prioritized breaking up criminal rackets. ⁽³⁷⁴⁾ In South Carolina, during the early 1990s, prosecutors targeted prenatal drug use by prosecuting mothers whose newborns tested positive for cocaine in their blood. ⁽³⁷⁵⁾ This culminated in a move away from conviction rates and case filing numbers as measures of prosecutorial success. ⁽³⁷⁶⁾ Prosecutors eventually placed more emphasis on their quasi-judicial role. ⁽³⁷⁷⁾ This opened the door for proactive prosecutors who sought to re-establish their community connection without compromising their professional prosecutorial integrity.

Prosecutors built upon their title as a jurisdiction’s “chief law enforcement officer” to advise legislative bodies about criminal law and criminal justice policies that might better assist local communities. Prosecutors provided this advice directly and indirectly. Some legislators or government agencies approached directly. For example, in Oklahoma, the State Department of Human Services solicited prosecutorial input prior to proposing changes to the legislature. ⁽³⁸¹⁾ Prosecutors also promoted their agenda through the media, influencing legislation indirectly. In the Bronx, prosecutors advocated for legislation that would give them authority to handle certain eviction cases in civil court. ⁽³⁸²⁾ They argued this would aid their mission to root out neighborhood crime problems. ⁽³⁸³⁾ Prosecutors also provided testimony at legislative hearings. In one instance, the district attorney for Houston, Texas testified before a United States Senate committee seeking funding for DNA testing. ⁽³⁸⁴⁾ In another, the National District Attorney’s Association (NDAA) sent a representative to testify regarding the waiver of juveniles to criminal court. ⁽³⁸⁵⁾ Prosecutors also testified before state legislatures. In Washington, the state Attorney General testified about the state’s gang problem. ⁽³⁸⁶⁾ In California, prosecutors testified about topics ranging from mortgage fraud to cock-fighting. ⁽³⁸⁷⁾ Prosecutors also provided legislation. In Missouri, prosecutors proposed legislation relating to identity theft and compensation for wrongfully convicted defendants. ⁽³⁸⁸⁾ A prosecutor drafted these proposals and gave them to a state legislator who then introduced them to the legislature and requested the prosecutor testify before the legislature regarding the proposals. Similarly, in Massachusetts, legislators provided the state legislature with proposed legislation that mandated minimum sentences for certain sex offenders. ⁽³⁸⁹⁾

To address specific community concerns about crime problems, prosecutors leveraged their law enforcement relationships to target specific crime problems. Due to overlap between state and federal criminal law and the need to efficiently use resources, state and federal prosecutors worked together to more effectively prosecute criminal violations. ⁽³⁹⁰⁾ The first of these efforts was the Organized Crime Drug Enforcement Task Forces (OCDETF). ⁽³⁹¹⁾ These were created to pool resources and focus attention on drug distribution organizations. ⁽³⁹²⁾ This idea expanded to encompass other crimes. Another nationwide task force was Project Safe Neighborhoods. ⁽³⁹³⁾ It removed violent offenders from communities as state and local law enforcement and prosecutors target particular individuals for prosecution. ⁽³⁹⁴⁾ Every federal judicial district had a Joint Terrorism Task Force associated with it to deter and disrupt terrorist acts. ⁽³⁹⁵⁾ Other task forces included violent offenders and export control. ⁽³⁹⁶⁾

With task forces in place, prosecutors created more specialized units to handle the cases. To address the growing and complex problem of property flipping, several offices created mortgage fraud units. ⁽³⁹⁷⁾ In Illinois, the Attorney General’s Office received a grant to provide training on domestic violence cases to prosecutors throughout the state. ⁽³⁹⁸⁾ Others focused on driving under the influence, child abuse and gangs. The effectiveness of these units remains an open question. ⁽³⁹⁹⁾

Other offices created specialized units to ensure compliance with prosecutorial obligations. In San Jose, California, the prosecutor’s office created an office to review all cases to ensure accurate convictions. ⁽⁴⁰⁰⁾ Other jurisdictions created discovery compliance units to ensure all required discovery material actually is disclosed. ⁽⁴⁰¹⁾

To further embrace their policy-making ability, prosecutors increased their community interaction, creating something that became known as community prosecution, and developed innovative prosecutorial practices. ⁽⁴⁰²⁾ Many programs assigned prosecutors to particular areas within the jurisdiction. In Philadelphia, the District Attorney reorganized the office so that prosecutors were assigned to neighborhoods that corresponded with the police department’s organization to promote clear communication between the prosecutor, the police and the community. ⁽⁴⁰³⁾ Similarly, Prince George’s County, Maryland, placed prosecutors inside the police departments. ⁽⁴⁰⁴⁾ The State’s Attorney hoped the move would generate innovative solutions to county crime problems. ⁽⁴⁰⁵⁾ In Fulton County, Georgia, the prosecutor opened an office in the suburb of Alpharetta because the town needed prosecutors to concentrate on that area of the county, rather than become involved in the large number of cases Atlanta generated. ⁽⁴⁰⁶⁾

Such changes often resulted from initiatives newly elected prosecutors developed upon entering office. In 2004, a newly elected prosecutor entered office in Pueblo, Colorado bringing what he termed “smart justice.” ⁽⁴⁰⁷⁾ The program focused on prevention and protection combined with prosecution. ⁽⁴⁰⁸⁾ He believed prosecutors should implement criminal justice policies, particularly in juvenile and mental health issues. ⁽⁴⁰⁹⁾ While still prosecuting criminals who deserved punishment, he created outreach and diversion programs for youth and offenders with mental illnesses. ⁽⁴¹⁰⁾ Finally, he created specialized units to handle difficult criminal cases, allowing the assistants to develop a level of expertise in their area. ⁽⁴¹¹⁾ When making charging decisions, the prosecutor adopted a policy whereby the assistants must be certain of conviction prior to filing charges. ⁽⁴¹²⁾ Newly elected prosecutors would become the driving force behind progressive prosecution as well.

As proactive prosecution bloomed at the start of the 21 ^st century, critiques followed almost immediately. Some saw the new community roles as advancing prosecutorial power. ⁽⁴¹³⁾ Moving professional prosecutors with a “law and order” philosophy into the community brought an inherent bias into proposed solutions to community problems. ⁽⁴¹⁴⁾ Not all professional prosecutors supported embracing the community and this created internal resistance to community prosecution programs. ⁽⁴¹⁵⁾ When prosecutors entered the community, questions arose about how to determine the “community’s” voice. ⁽⁴¹⁶⁾ Finally, the diverse array of community prosecution programs made some question whether proactive prosecution was more symbolic than functional.

Prior to proactive prosecution, prosecutors had tipped the balance of power in their favor. ⁽⁴¹⁷⁾ By expanding their domain into community relations, prosecutors further expanded their influence. ⁽⁴¹⁸⁾ Previously seen as magistrates and advocates, prosecutors became social engineers. ⁽⁴¹⁹⁾ They attempted to address a wide range of problems identified as causing crime with the goal of reducing it. ⁽⁴²⁰⁾ Rooting themselves in the community could bias potential jurors who might establish personal relationships with prosecutors and result in prosecutors targeting individuals for reasons other than their criminal activity.

Professors Green and Burke examined a Delaware County, Pennsylvania, community prosecution program and questioned whether the choices made to address community problems raised ethical questions due to a law enforcement bias. ⁽⁴²¹⁾ They argued that some programs “may be inconsistent with ordinary principles regarding how prosecutors should employ their discretion.” ⁽⁴²²⁾ They found a diversion program available to the wider county was not available to the county seat, which had a higher drug use rate. ⁽⁴²³⁾ This denied first-time offenders in the county seat an opportunity to obtain treatment, thus violating a principle of equality. ⁽⁴²⁴⁾ Rather than make prosecutorial decisions based on offense conduct, the decision was made based on location. ⁽⁴²⁵⁾

Not all prosecutors embraced this change. Having spent their careers prosecuting cases in a particular way, some professional prosecutors resisted community involvement. ⁽⁴²⁶⁾ When newly elected prosecutors attempted to implement new programs, prosecutors more familiar with professional prosecutorial methods saw these new programs in tension with their visions of prosecutorial behavior. ⁽⁴²⁷⁾ To them, trying to solve community problems was the job of social workers. ⁽⁴²⁸⁾ The office culture also dictated that “community prosecution” assignments were seen as less prestigious than the “professional” prosecution assignments. ⁽⁴²⁹⁾

Once prosecutors entered the “community” they struggled to find the “true” community voice. To make initial inroads, prosecutors sought well-defined and well-organized groups. ⁽⁴³⁰⁾ Prosecutors also utilized existing connections, such as victim rights organizations. ⁽⁴³¹⁾ Some communities proved difficult to integrate into prosecution programs. These groups, based on their life experiences, viewed law enforcement programs suspiciously. ⁽⁴³²⁾ There might be built-in biases when creating these programs as well. For example, parents of juvenile offenders might be overlooked when planning community programs. ⁽⁴³³⁾

Ultimately the novelty and variety of proactive prosecution may render it more symbolic than functional. The novelty of the approach permits any office to label almost anything community or proactive prosecution. ⁽⁴³⁴⁾ Some prosecutors who attend neighborhood meetings call their attendance community prosecution. ⁽⁴³⁵⁾ Other offices have gone further and installed prosecutors in neighborhood offices or have created community criminal justice councils. ⁽⁴³⁶⁾ The most ambitious offices have created collaborative organizations that pair prosecutors with community members to identify crime problems and craft prevention initiatives. ⁽⁴³⁷⁾ This led to the critique that proactive prosecution was not a new phenomenon but merely a public relations tactic that ultimately interfered with change. ⁽⁴³⁸⁾

Kim Foxx in Cook County, Illinois, and Larry Krasner in Philadelphia, Pennsylvania, serve as two well-known examples of progressive prosecutors who swept into office between 2016 and 2020. In 2016, Foxx became the first African-American woman to lead her office. ⁽⁴⁴³⁾ She ran promising a more forward-thinking agency. ⁽⁴⁴⁴⁾ This included regaining public trust and promoting transparency. ⁽⁴⁴⁵⁾ Since taking office, Foxx implemented her campaign agenda. ⁽⁴⁴⁶⁾ She highlighted the office’s conviction integrity unit, created in 2012, noting that it overturned convictions in more than 80 cases. ⁽⁴⁴⁷⁾ She instructed prosecutors to consent to non-monetary bonds. ⁽⁴⁴⁸⁾ She also diverted resources from low-level crimes to more violent offenses. ⁽⁴⁴⁹⁾ To promote transparency, she made her office’s data available to anyone interested in reviewing it. ⁽⁴⁵⁰⁾ Prior to her election, she worked as an Assistant State’s Attorney and served as Chief of Staff to the Cook County Board President where she led the county’s criminal justice reform agenda. ⁽⁴⁵¹⁾

Where Foxx brought prosecutorial experience to the office, Larry Krasner spent the bulk of his career handling criminal defense work. ⁽⁴⁵²⁾ His campaign emphasized changing the Philadelphia District Attorney’s office’s culture. ⁽⁴⁵³⁾ He pledged to end mass incarceration by not prosecuting “insufficient and insignificant” cases, reviewing past convictions, and stopping cash bail. ⁽⁴⁵⁴⁾ Once in office, he successfully diverted nonviolent offenders and greatly reduced cash bail requirements. ⁽⁴⁵⁵⁾ He also unilaterally decriminalized marijuana possession and prostitution. ⁽⁴⁵⁶⁾ To accomplish this required sweeping personnel changes. ⁽⁴⁵⁷⁾

These two examples demonstrate the fundamental principles of progressive prosecution. The first is that progressive prosecutors focus upon the mass incarceration problem in the United States. ⁽⁴⁵⁸⁾ As many have noted, the United States incarcerates people at a staggering rate and this disproportionately affects minority groups. ⁽⁴⁵⁹⁾ Progressive prosecutors identified several approaches to reversing this phenomenon. First, they tasked conviction integrity units with reviewing past cases for errors, focusing on police misconduct. Second, they used their discretionary authority to decriminalize—or nullify-- what they perceived as minor offenses. Third, they stopped mandating cash bail for non-violent offenses.

Progressive prosecutors built upon the foundation laid for them by their predecessors when it came to conviction integrity units. These units began in Dallas and San Diego between 2007–2009. ⁽⁴⁶⁰⁾ These offices were established in the wake of Innocence Project DNA exonerations. ⁽⁴⁶¹⁾ They reviewed cases where DNA might indicate the courts convicted the wrong person. ⁽⁴⁶²⁾ Progressive prosecutors established new units where they previously did not exist and expanded their mission, reviewing convictions for procedural errors or those that resulted from questionable police testimony. ⁽⁴⁶³⁾ These units also developed policies to prevent future wrongful convictions such as creating lists of officers with suspect credibility. ⁽⁴⁶⁴⁾

During their campaigns, progressive prosecutor candidates announced they would not prosecute entire categories of criminal offenses or create standards for prosecution above what the statutory law required. They focused on perceived low-level misdemeanor offenses including marijuana and retail theft. ⁽⁴⁶⁵⁾ This expanded the prosecutor’s discretionary authority. ⁽⁴⁶⁶⁾ Previous prosecutor phases employed discretionary authority on a case-by-case basis. ⁽⁴⁶⁷⁾ Progressive prosecutors applied their authority without regard to case facts, instead effectively nullifying entire sections of the criminal code. ⁽⁴⁶⁸⁾ They could do this with only minor opposition because their election bestowed a popular mandate. ⁽⁴⁶⁹⁾

Finally, progressive prosecutors championed removing cash bail for minor offenses. ⁽⁴⁷⁰⁾ While only judges set bail, prosecutors may make recommendations. ⁽⁴⁷¹⁾ Often, judges follow the prosecutor’s recommendation. ⁽⁴⁷²⁾ Bail, itself, discriminated against low-income defendants who lack the funds to post bail. ⁽⁴⁷³⁾ This means they remain incarcerated thus creating an incentive to plead guilty, even if factually innocent. ⁽⁴⁷⁴⁾ Prosecutors found they could reduce incarceration and avoid potentially wrongful convictions by not recommending cash bail to the court. ⁽⁴⁷⁵⁾

To demonstrate their policies’ effectiveness and develop new policies, progressive prosecutors promoted data transparency. ⁽⁴⁷⁶⁾ Both Krasner’s and Foxx’s offices made their case data publicly available. Interested citizens could see the decisions prosecutors made and the effects those decisions had on the community. For these prosecutors, evidence-based decisions were easily defended. ⁽⁴⁷⁷⁾ They could justify their programs as cost-saving and efficient. ⁽⁴⁷⁸⁾ Instead of being judged on conviction rates, data transparency created new metrics upon which people could judge the prosecutor’s success.

The progressive prosecution program raises critiques beyond those associated with disliking change. Like proactive prosecution, progressive prosecution suffers from a definitional problem. Many have labeled themselves progressive prosecutors, but the policies implemented differed. Regardless of the label, some progressive prosecutorial policies have raised questions. First, using evidence-based prosecution resembles pretextual prosecutions, prosecuting someone for conduct beyond the formal criminal charges. Second, while condemning prosecutorial power to incarcerate people en masse, progressive prosecution expands prosecutorial power to nullify duly enacted legislation. A final critique appears in progressive prosecution’s embrace of politics, though not necessarily partisanship.

Between 2016 and 2020, numerous prosecutors ran under the progressive prosecution banner but advocated different degrees of reform. ⁽⁴⁷⁹⁾ One type adopts the name without with action. ⁽⁴⁸⁰⁾ This person has progressive political ideas but does nothing to implement them. ⁽⁴⁸¹⁾ A second type applies progressive ideas to procedural protections. ⁽⁴⁸²⁾ To an extent, this is the professional prosecutor leaning to the minister of justice side of the scale. ⁽⁴⁸³⁾ It prioritizes procedural protections over convictions but, in the process, makes conviction and sentence more certain. ⁽⁴⁸⁴⁾ A third type adopts the wider liberal, or progressive, political agenda and implements it in the context of criminal prosecution. ⁽⁴⁸⁵⁾ This type might target police misconduct or specific types of crimes such as wage theft. ⁽⁴⁸⁶⁾ A fourth prioritizes the single agenda item of eliminating mass incarceration. ⁽⁴⁸⁷⁾ This type crafts policies to achieve this end without regard to the traditional prosecutorial function. ⁽⁴⁸⁸⁾ Before even assessing progressive prosecution, the true meaning must be defined.

Beyond labeling, progressive prosecutorial policies have generated some concern. Many progressive prosecutors have adopted evidence-based practices. ⁽⁴⁸⁹⁾ For instance, they will argue that bail reform has not meant fewer people appear for court. Yet evidence-based practices may lead to prosecutorial decisions based upon statistical trends rather than individual case assessments. Professor Sklansky sees this akin to pretextual prosecutions where prosecutors pursue minor or technical law violations in order to prosecute someone who has engaged in more broad but unprovable criminal conduct. ⁽⁴⁹⁰⁾ For example, the High Point, North Carolina, community implemented a call-in initiative whereby non-violent drug dealers were brought into a community meeting that included social workers, counselors, and law enforcement. ⁽⁴⁹¹⁾ The dealers were given a choice to either avail themselves of the community support of face the possibility of long prison sentences. ⁽⁴⁹²⁾ Those choosing the latter were charged with a crime for which the police had evidence. ⁽⁴⁹³⁾ The most significant dealers were identified through evidence-based practices and then sometimes prosecuted for the first identifiable offense, even if unrelated to drug dealing. ⁽⁴⁹⁴⁾

Progressive prosecutorial policies also raise separation of powers concerns. ⁽⁴⁹⁵⁾ Today, prosecutors serve as executive officials charged with enforcing legislatively enacted laws. ⁽⁴⁹⁶⁾ Prosecutors are not lawmaking offices, even if they do draft legislation and advise legislators. ⁽⁴⁹⁷⁾ In the lawmaking process, the executive branch may veto unacceptable legislation. ⁽⁴⁹⁸⁾ However, once duly enacted, the executive has a duty to enforce it, within the bounds of prosecutorial discretion. ⁽⁴⁹⁹⁾ This discretion has traditionally occurred on a case-by-case basis. Progressive prosecutors have expanded prosecutorial discretion to encompass entire crime categories. These policies essentially give prosecutors a more extensive and unreviewable executive veto power. While only used presently for offenses deemed minor, the possibility exists that other prosecutors will use this “veto” power for laws that progressive prosecutors may think are important, such as prohibitions on gun ownership.

The differing perceptions of important crimes and minor crimes highlight the last criticism of progressive prosecution, namely that it brings political preferences back into prosecutorial decision-making. Commentators on the prosecution function have decried politicized prosecutions, arguing that politics must be separated from prosecutorial decision-making. ⁽⁵⁰⁰⁾ Yet, progressive prosecutors rely on the political process—sometimes in a partisan manner—to establish a mandate for their reform agenda. ⁽⁵⁰¹⁾ Progressive prosecutors respond to concerns raised by their constituents, especially those who observe court regularly. ⁽⁵⁰²⁾ As a result, the potential exists for progressive prosecutors to bring charges in particular cases more for their political public relations benefit than based, solely, on the case’s merits.

The first key theme that emerges from exploring the prosecutor’s historical evolution is that prosecutors transitioned from a small role in a decentralized process to a place where they can create widespread social change. In doing so, they pulled other aspects of the criminal courts and the wider criminal justice system into their domain. ⁽⁵⁰³⁾ Sometimes this involved assuming roles held by others. At other times this meant devising strategies to leverage the system in their favor. This shows that prosecutors have a gravitational pull that permits them to centralize authority around themselves.

From their origins as someone who organized files, prosecutors have become agents for social change. Public prosecutors originated because the courts needed someone to translate private criminal complaints into the proper legal form. In more organized colonial legal systems, the courts also needed someone to initiate morals prosecutions. Following independence, these public prosecutors rode the wave ushered in by more elected government positions. With independent electoral authority, prosecutors assumed discretionary authority. Taking over from Justices of the Peace and Grand Juries, prosecutors decided which cases entered the court system and which did not. Acquiring this authority gave prosecutors the tool necessary to exert leverage over other aspects of the criminal courts and criminal justice process.

Over time, prosecutors used their discretionary authority to advance their professional goals. Initially, that meant leveraging their charging authority to gain political advantage. Prosecutors who identified with political machines used their leverage to protect those similarly politically connected by not filing criminal charges, even if warranted. Those who identified with the “other” party faced the threat of potential prosecution, even if unwarranted. Eventually prosecutors only prosecuted cases with strong evidence. This led to a police-prosecutor relationship whereby the two organizations cooperated in criminal investigations, forming an exchange relationship. ⁽⁵⁰⁴⁾ This in turn led to prosecutors identifying particular crime problems and addressing them, first, through prosecution and, later, through legislation. When working in this later sphere, prosecutors could propose new crime control measures and advise legislatures on crime control matters. In the courthouse, prosecutors used their discretionary authority to leverage guilty pleas. By offering lesser sentences before trial, as opposed to after trial, prosecutors imposed a measure of risk for defendants who wished to exercise their constitutional right to trial. Then, by overcharging cases, prosecutors could negotiate lower sentences without giving up anything. More recently, prosecutors have used their discretionary authority to not prosecute cases. This could be the result of proactive diversion programs or the belief that, as a policy matter, the offense does not warrant prosecution.

If we divide the criminal justice system into six stages, we see how prosecutors have expanded their domain throughout the process. First, the legislature must identify conduct as criminal. Prosecutors now propose new laws and advocate for their passage. Second, someone must investigate alleged criminal behavior. Prosecutors work closely with law enforcement to determine priorities and to gather evidence. Third, someone must initiate criminal charges. This is where prosecutors possess near absolute authority. In addition, their work on the investigation leads to a presumption of guilt, making them more advocates than ministers of justice. Fourth, outcomes must be negotiated. Prosecutors, through their charging authority, can heavily influence the boundaries of the negotiation. Fifth, someone must adjudicate the case, especially if an outcome cannot be negotiated. Once again, through their charging authority, prosecutors induce guilty pleas at extraordinary rates. Finally, someone must decide what happens to the person once the person reaches the other side of the process. Prosecutors utilize their charging authority to divert some people from the entire process and mandate certain behavior as a consequence. While prosecutors may not have “power” over the other court actors, they have significant influence over every stage in the process and have centralized authority through their charging discretion.

As prosecutors expanded their domain, their community connection waxed and waned. Community connection is important because the electoral process is one of the few methods available to hold prosecutors accountable for discretionary decisions. If people do not vote or are not connected to elected prosecutors, then prosecutors can use their charging discretion for nefarious purposes. Throughout the arc of prosecutorial evolution, that connection has varied.

Beginning as minor figures, the only connection prosecutors had to the community was when a case emerged from the grand jury. The prosecutor had a duty to prepare the case for court and, if no private attorney appeared, present the case. ⁽⁵⁰⁵⁾ Once the public prosecutor became an elected official, a public connection became essential. At first, prosecutors were part of a larger political organization that reflected people with certain political perspectives. New York City’s experience best reflects this. One candidate represented the “respectable” classes and the other candidate represented the “suspect” classes. Depending on which could garner the most support, that group’s interests prevailed. In this way, as part of a larger political process, prosecutors were just one representative of the collective community voice. As prosecutors disconnected themselves from the partisan political influences—but not necessarily political parties—they became less connected to the communities they served. Instead, they exercised their own professional judgement rather than being beholden to a particular political interest or agenda. If a community connection had significance during this time, it was to identify crime problems that professional prosecutors should investigate and pursue. This disconnect appears in the infrequent electoral change in prosecutor offices. Eventually, however, as prosecutors sought innovative ways to prevent criminal activity, they recognized the need to return to the community. They formed community partnerships to proactively address criminal conduct, before it reached the courts.

Today, we see even more community connection as progressive prosecutors assume more control. In this, we hear echoes of political prosecutors who responded to constituent desires. Progressive prosecutors affiliate more with the Democratic party and their political interests align with groups that traditionally vote Democratic. ⁽⁵⁰⁶⁾ Their different perspective also forced progressive prosecutors to replace long-time prosecutors with newly hired prosecutors who share the progressive prosecution vision. ⁽⁵⁰⁷⁾ Similar hiring practices occurred with political prosecutors. Just as importantly, progressive prosecutors seek to mitigate the harshness of the criminal justice process just like those during the political prosecution phase. Finally, progressive prosecutors adopt the grand jury’s role during the Revolutionary Era when they refuse criminal charges they perceive as unjustly affecting certain societal groups.

Like the prosecutor’s community connection, the prosecutor’s interest in the case outcome waxes and wanes throughout the prosecutor’s evolution. The change occurs, however, in an inverse relationship with the community connection. The closer the community connection the less interest, or emphasis, is placed on obtaining a guilty verdict. Not surprisingly, as prosecutors focus more on winning, they also focus more on case screening, weeding out cases with insufficient evidence.

Initially, the public prosecutor lacked any interest in the case outcome. ⁽⁵⁰⁸⁾ With private prosecutors handling most cases, public prosecutors did not even present cases. Instead, they prepared case summaries that both sides utilized. When public prosecutors did handle cases, they merely presented the facts. In some instances, they presented the case for both sides. During this time, the state itself also had no interest in the outcome of criminal cases. ⁽⁵⁰⁹⁾ Showing an interest constituted an unacceptable endorsement of the victim’s case.

The move to elected prosecutors changed this approach slightly. As party loyalists, prosecutors had an interest in obtaining a conviction if it benefitted their political constituents. Convictions were important for prosecutors who represented the “respectable” classes to show that the prosecutors were protecting the community. Conversely, for prosecutors who represented the “suspect” classes, they were less concerned about the quantity of convictions. Instead, they argued that preserving resources for more important cases was paramount.

Professional prosecutors focused exclusively on winning cases. Conviction rates were essential to demonstrate not only their effectiveness, but their worthiness for the position. Some developed a win-at-all-costs mentality that caused them to circumvent constitutional protections. Others strategized means to enhance the likelihood of conviction. The desire to win prompted, at least in part, cooperation with the police and plea negotiation strategies such as overcharging and trial taxes. Over time, the quantity of wins also mattered. By obtaining guilty pleas, prosecutors could trumpet thousands of convictions annually. All of this helped their re-election efforts.

Overwhelming caseloads and community demands for reform, however, shifted the winning orientation of some prosecutors. Instead, they saw preventing criminal activity and avoiding prosecution as meritorious. The number of community partnerships became more important than the number of convictions. Today’s progressive prosecutors spend more time lauding their exonerations than their convictions. By hiring new attorneys, who share this vision, measures other than conviction rates demonstrate successful outcomes.