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There are several systems of criminal prosecution in the Western world, each distinguished in substantial part by the extent to which a public prosecutor decides whether crime should be charged. In England, any member of the public may prosecute but the attorney general has complete authority to dismiss the charge, and most prosecutions are conducted by the local police. In continental Europe, the initiative lies almost entirely with the state, acting through a public prosecutor or an investigating magistrate; charging discretion is said to be nonexistent or subject to judicial review. American criminal prosecution is a hybrid. Like continental systems, it is an institutionalized and public function; like its English ancestor, it places extraordinary emphasis on local autonomy and charging discretion.
It is misleading, however, to refer to an American system of prosecution because there are fifty-one and more such systems in the United States—one for the federal government and one for each of the states, with the state systems in turn comprised of many subsystems. Typically, state prosecution is organized along county lines under the direction of an elected and autonomous prosecutor, variously designated as county attorney, district attorney, or state attorney. Only rarely is he part of a statewide department of justice. State police, too, have limited functions; the bulk of law enforcement is carried on by the cities and towns, each of which has its own police force. In these fragmented and nonhierarchical systems, the power of the county attorney to determine whether charges should be filed or dismissed has made him the critical link between the state’s criminal code, its judicial system, and local police forces.
At first glance, the federal government has a structure that is more reminiscent of the national systems that are typical in continental Europe. The Attorney General of the United States is the chief federal prosecutor and heads the Department of Justice, which includes the Federal Bureau of Investigation and ninety-one United States attorneys, each supervising offices in a federal judicial district and prosecuting federal crime in that district. In practice, however, the United States attorney is independent of all but nominal supervision—the result of strong centrifugal elements that are rooted in the nature of the American federal system, the vast distances subject to federal criminal law, and the strong tradition of local law enforcement.
This research paper will discuss how English and Western European patterns evolved in the United States into a distinctively American system of criminal justice, characterized in the states by an autonomous local public prosecutor endowed with virtually exclusive authority to prosecute and, in most places, elected by the people.
British and Colonial Origins
In the seventeenth and eighteenth centuries, a system of private prosecution prevailed in England. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed the role. The attorney general of England could initiate prosecutions but did so only in cases of special importance to the Crown. He did, however, play an occasional part in controlling the excesses of private prosecution. By filing a writ of nolle prosequi, indicating his intention not to prosecute, he could dismiss any prosecution and his decisions in such matters were treated by the courts as entirely within his discretion.
Criminal procedure in the American colonies tended to follow this pattern. There was an attorney general in each colony, the first appointed in Virginia in 1643. Like their English counterparts, the American attorneys general could represent the Crown in both civil and criminal cases but left criminal prosecution largely to the victim. This system of private prosecution proved even more poorly suited to the needs of the new society than to the older one. Grand jurors were often in need of professional guidance and complainants were easily deterred by the difficulty and expense of conducting their own prosecutions, particularly when the distances to be traveled between settlement and colonial capital were great and communications rudimentary. Moreover, the severe criminal sanctions of the period were powerful spurs to abuse of the judicial system—by victims initiating prosecution to exert pressure for financial reparation, and by offenders avoiding criminal sanctions by settling their cases privately.
As population and crime increased, the single criminal court in each colony, and the sole attorney general, were replaced by county courts and by county attorneys attached to each court. This occurred as early as 1704 in Connecticut. These county prosecutors came to be regarded as local officials rather than as agents of a central colonial authority. In their counties, they were treated as if they were attorneys general and the prosecuting role of the colony’s attorney general became a vestigial one.
While public prosecution was superimposed on private prosecution in most colonies, it emerged more directly in others, especially in areas that had been settled by the Dutch in the seventeenth century. In these settlements— constituting New Netherlands and counties of parts of what are now Connecticut, New York, New Jersey, Pennsylvania, and Delaware—the Dutch brought public prosecution with them. Prosecutions were conducted by an official called a schout. When the British took New York from the Dutch in 1664, criminal prosecution remained much as it had been under the Dutch administration, except that the schout was replaced by a sheriff.
In the British colonies of the Middle Atlantic seaboard, therefore, public prosecution was a practice that had been introduced either by a continental predecessor or was an expression of local self-government, replacing a system of private prosecution that was viewed as inefficient, elitist, and sometimes vindictive. It is impossible to say whether the movement to public prosecution reflected, in addition, a desire on the part of Scottish, French, and Swedish settlers to follow the systems they knew in their countries of origin.
In any event, by the time of the American Revolution, each colony had some form of public prosecution exercised on a local basis. In many instances, a dual pattern was established within the same geographical area, by county attorneys for violations of state law and by town prosecutors for ordinance violations. This pattern was carried over into the states as they became part of the new nation. The federal system of prosecution at first followed the state pattern with authority to ‘‘prosecute in each district’’ for federal crimes vested in local United States district attorneys appointed by the president. Not until the Civil War broke out in 1861 did Congress give the Attorney General of the United States ‘‘superintendence and direction of United States Attorneys’’ and lay the foundation for the United States Department of Justice.
The Prosecutor As an Elected Local Official
In the early years of the republic, the prosecuting attorney was a minor judicial official. Only five of the first thirteen state constitutions refer to an attorney general, and all include the office in the judicial, rather than the executive, article. Sometimes he was separately referred to in statutory provisions establishing a state’s judicial system. The transformation of the prosecutor from a minor functionary of the local court to a powerful member of the executive branch began in the 1820s with the rise of Jacksonian democracy. During this period, the limited democracy of the early republic was supplanted by a system of extensive franchise and popular election of officials, including judges. With the election of local judges came the election of the local prosecutor. Today, there are only a few states in which prosecutors are appointed, usually by the governor. Although the attorney general in some states retains a theoretical right to prosecute, or to supervise or displace local prosecutors, the authority is so rarely exercised as to lose practical significance.
Local election of prosecutors originated as an incident of the election of judges, but it did not disappear when such elections were abandoned in most states. At the very time it was concluded that the need to stand for election could not be reconciled with ‘‘judicial’’ impartiality, local election was said to make the prosecutor more truly a ‘‘lawyer for the people.’’ In time, his roots in local politics made him a more powerful figure than the local judge. Courts continued to describe him as a quasi-judicial official—more than a ‘‘mere adversary’’—but he was viewed increasingly as an executive, rather than a judicial, figure. This perception was reflected in the new state constitutions, which now listed him as a member of the executive branch, along with other officials of local government.
This politically based and decentralized system was subjected to its most severe criticism in the 1920s and 1930s, when criminal laws proliferated in an effort to deal with increasingly heterogeneous populations, more complex societal phenomena, and more crime. Crime surveys of the period revealed that most prosecutors were elected for a short term, their assistants were usually underpaid political appointees, and many were employed only part-time. The office was found to suffer too often from incompetence, corruption, and political opportunism.
Nevertheless, there has been little inclination to abandon the system of elected local prosecutors. Direct accountability to the people has been treated as a virtue in an increasingly bureaucratic society. Reliance has been placed on other measures to improve efficiency and raise the level of accountability, chief among them the movement to full-time prosecutors and a greater emphasis on professionalism. In addition, criminal activity transcending county lines has led to greater efforts at coordination among local prosecutors, to vesting the attorney general of the state with specified prosecuting functions, and, on occasion, to the creation of statewide special prosecutors. The federal government, too, has expanded its role in dealing with ‘‘local’’ crime. Through statutes enacted under the commerce and other federal powers, many of which overlap state criminal laws, the local United States attorney can often step in to remedy grosser forms of local inaction, undercharging, corruption, or incompetence.
A Monopoly of The Power to Prosecute
In the United States it is commonly assumed that the district attorney has exclusive authority to initiate the formal charge of crime. The police may not proceed to trial on their own, and only in the most extraordinary cases may grand juries do so. Even then, the prosecutor may ordinarily dismiss the charge. Nevertheless, vestiges of private prosecution remain on the statute books and in practice, as is to be expected in a system rooted in the English system of private prosecution.
During the colonial period, public prosecutors had no exclusive rights in the criminal courts, and judges did not hesitate to appoint counsel for the Crown when the attorney general refused or neglected to proceed. Even when public prosecutors began to displace private prosecution in the new nation, they were rarely given an explicit monopoly of the power to prosecute.
Gradually, however, the sense of a public stake in criminal prosecution grew larger. This was because private prosecutors were perceived as inherently partisan, criminal law was being used to serve regulatory purposes in which private parties might have only a limited interest, and public prosecutors were regarded as better qualified to make impartial evaluations of evidentiary sufficiency and public necessity. The issue took legal form in cases raising the question of whether a private party—for example, the victim—could conduct a prosecution if the public prosecutor refused or neglected to file a charge.
Several states have retained the private complainant’s right to prosecute or to complain directly to a grand jury, but the trend has been toward placing control in the hands of the district attorney. However, some courts have adopted an intermediate approach. They permit a private attorney to assist the public prosecutor in preparation and trial if the court or the prosecutor consents and if the public prosecutor retains control. Appellate courts have invoked the fiction of ‘‘delegation’’ in order to sustain convictions in which public prosecutors have played little or no part. Especially in minor criminal cases, the concept of delegation has been stretched as public prosecutors facing crowded dockets have acquiesced in prosecution by private counsel.
The Independence of The Public Prosecutor
The local district attorney enjoys an unusual degree of independence, not only from administrative superiors in a statewide system but from judges and grand juries as well. Over the years, the courts have reinforced his independence by allowing him a degree of ‘‘discretion’’ that contrasts dramatically with the control they have exercised over official action much less familiar to them. When victims have tried to compel prosecution on the ground that the district attorney was neglecting their and the public’s interest, the courts have said the victims lack ‘‘standing,’’ as in Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). When statutes or court rules require judicial approval for dismissing or reducing a charge or accepting a guilty plea, matters have generally been left to the prosecutor.
The concept of an expansive prosecutorial discretion traces to the body of law that dealt not with the initiation of a charge by the prosecutor but with its termination by filing a writ of nolle prosequi. The writ had existed in England since the sixteenth century, but there it was the attorney general of England who could intervene and dismiss charges if they were frivolous or insubstantial, or if they might somehow interfere with a Crown prosecution. Though private prosecution has virtually disappeared in the United States, and the local district attorney has a virtual monopoly of the power to prosecute, the nolle has remained with him, on the assumption that he inherited the prerogatives of the attorney general of England. Through it, he has been able to dispose of criminal cases without trial and without review. If he could dismiss at will, it has been assumed that he alone could choose to initiate prosecution or not to do so.
The use of the nolle attracted relatively little attention until the early twentieth century. But in the 1920s, as the political nature of the office became evident, attacks were directed at the evils of selective prosecution and nonenforcement associated with the county attorney’s unlimited power. By 1930, thirty-one states had responded to the criticism and had adopted some form of judicial control (Criminal Procedure, pp. 895–897). But the new statutes and rules, which required prosecutors to file motions for dismissal and which authorized courts to grant or deny the motion, have had remarkably little impact. The courts have not often asked for explanations or examined carefully those that were given.
Judicial reluctance to intrude on the dismissal power was based on several factors. The courts felt constrained by the constitutional doctrine of separation of powers. And they feared that they might be drawn into administrative considerations beyond their competence. Less often articulated but perhaps more important, the prosecutor’s discretion played a critical role in producing the guilty pleas that accounted for most criminal convictions. If courts had pressed to the limit their authority to pass on the dismissal of charges, they would have had to begin a process of appraising the relation between charging discretion and guilty pleas, many of which are entered because the defendant expects he will gain some advantage from sparing the government the need to prove him guilty.
Until 1970, that course was not a viable option because the courts had left the guilty plea, and the practices underlying it, almost entirely to the parties. In 1970, however, the Supreme Court for the first time acknowledged the legitimacy of plea bargaining (Brady v. United States, 397 U.S. 742 (1970)) and set the stage for some judicial review of that hitherto invisible process. Since then, courts and law reformers have had to consider the implications of allowing a public prosecutor—caught up in the ‘‘competitive enterprise of ferreting out crime’’—to administer virtually unchecked a system of charging, dismissals, and guilty pleas. This trend has been augmented by the emergence of a victims’ rights movement that would restore to victims some role in controlling the degree to which public prosecutors act as their surrogates in these matters.
- American Law Institute. Code of Criminal Procedure: Official Draft. Philadelphia: ALI, 1931.
- American Law Institute. Criminal Procedure. Philadelphia: ALI, 895–897. Comment. ‘‘The District Attorney: A Historical Puzzle.’’ Wisconsin Law Review (January 1952): 125–138.
- ‘‘Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction.’’ Yale Law Journal 65 (1955): 209–234.
- CUMMINGS, HOMER Federal Justice: Chapters in the History of Justice and the Federal Executive. New York: Macmillan, 1937.
- EDWARDS, JOHN Law Officers of the Crown: A Study of the Offices of Attorney General and Solicitor General of England, with an Account of the Office of the Director of Public Prosecutions of England. London: Sweet & Maxwell, 1964.
- GOEBEL, JULIUS, JR., and NAUGHTON, T. RAYMOND. Law Enforcement in Colonial New York: A Study in Criminal Procedure, 1664–1776. New York: Commonwealth Fund, 1944.
- GOLDSTEIN, ABRAHAM The Passive Judiciary Prosecutorial Discretion and the Guilty Plea. Baton Rouge: Louisiana State University Press, 1981.