Volume 61

Why Attacks on Prosecutorial Discretion Are Attacks on Democracy

by Rebecca Blair and Miriam Aroni Krinsky

As communities across the United States have increasingly elected reform-minded prosecutors to lead their local district attorney’s offices, the broad discretion afforded to American prosecutors has faced unprecedented scrutiny. Opponents of criminal justice reform have vigorously contested prosecutorial policies aimed at presumptively ending the prosecution of certain offenses, reducing extreme sentences, and shrinking the criminal legal system’s overall footprint. These challenges have leveraged legislative, executive, and judicial channels to restrict the power of, or even remove from office, prosecutors who implement such policies.

In this Article, we contextualize the policies of contemporary reform-minded prosecutors within a historical and political framework. By tracing the lineage of American prosecutorial discretion to its origins, we demonstrate that the policies pursued by today’s reform-oriented prosecutors align with the conception of prosecutorial discretion that has been broadly accepted throughout the American legal system for over a century and a half. We then analyze the value of reform policies in enhancing public safety, ensuring equitable and consistent charging decisions, and fostering meaningful community oversight of local prosecutorial practices. We conclude by calling on decision-makers to allow local communities to assess these normative claims and chart the way forward for their own justice systems.

Read More

Subscribe to ACLR