Volume 60

A Fiduciary Theory of Progressive Prosecution

by Bruce A. Green and Rebecca Roiphe

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion
by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive
prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations. This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public. The Article concludes by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role.

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