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Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

  • Austin Sarat and Conor Clarke


Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.

By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.



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Ackerman, Bruce. 2004. The Emergency Constitution. Yale Law Journal 113:1029–91.
Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press.
Agamben, Giorgio. 2005. The State of Exception. Chicago: University of Chicago Press.
Baker, Newman. 1935. The Prosecuting Attorney: Legal Aspects of the Office. Journal American Institute of Criminal Law and Criminology 26:647–98.
Blackstone, William. 1850. Commentaries on the Laws of England. New York: Harper.
Bodin, Jean. 1992. On Sovereignty: Four Chapters from The Six Books of the Commonwealth. Trans. and ed. Franklin, Julian. Cambridge: Cambridge University Press.
Boland, Barbara, Conly, C. H., Mahanna, P., Warner, L., and Sones, R. 1987. The Prosecution of Felony Arrests, 1987. Washington, DC: United States Department of Justice.
Brady, Surell. 2000. Arrests Without Prosecution and the Fourth Amendment. Maryland Law Review 59:1128.
Cass, Ronald. 2001. The Rule of Law in America. Baltimore: Johns Hopkins University Press.
Cisneros, Henry. 2004. Extra Spice for American Culture. Financial Times of London, May 24, 17.
Davis, Angela J. 2001. The American Prosecutor: Independence, Power, and the Threat of Tyranny. Iowa Law Review 86:393465.
Ely, Amie N. 2004. Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum's Curtailment of the Prosecutor's Duty to “Seek Justice.” Cornell Law Review 90:237–78.
Erlinder, C. Peter, and Thomas, David C. 1985. Prohibiting Prosecutorial Vindictiveness While Protecting Prosecutorial Discretion: Toward a Principled Resolution of a Due Process Dilemma. Journal of Criminal Law and Criminology 76:341438.
Fallon, Richard. 1997. “The Rule of Law” as a Concept in Constitutional Discourse. Columbia Law Review 97:156.
Ford, Daniel A., and Breall, Susan. 2000. Violence Against Women: Synthesis of Research For Prosecutors. Washington, DC: National Institute for Justice.
Frase, Richard S. 1980. The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion. University of Chicago Law Review 47:246330.
Goldstein, Abraham. 1981. The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea. Baton Rouge: Louisiana State University Press.
Green, Stuart. 1988. Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute. Yale Law Journal 97:488508.
Hamilton, Marci. 2003. The Rule of Law: Even As We Try to Export the Ideal of Justice By Law, Not Whim, Some in America Resist That Very Ideal. (accessed May 10, 2007).
Harris, Paul. 2006. Saint Patrick's Day. Guardian of London, February 12.,,1707777,00.html (accessed May 10, 2007).
Harvard Law Review. 1998. Uniform Federal Rules of Attorney Conduct: A Flawed Proposal. Harvard Law Review 111:2063–80.
Henning, Peter J. 1999. Prosecutorial Misconduct and Constitutional Remedies. Washington University Law Quarterly 77:713838.
Huntington, Samuel. 1996. The Clash of Civilizations and the Remaking of World Order. New York: Simon & Schuster.
Jackson, Robert H. 1940. The Federal Prosecutor. American Judicial Society 24:1820.
Jacoby, Joan 1980. The American Prosecutor: A Search for Identity. Lexington, MA: Lexington Books.
Johns, Margaret. 2005. Reconsidering Absolute Prosecutorial Immunity. Brigham Young University Law Review 2005:53154
Johnston, David, and Rutenberg, Jim. 2006. No Rove Charges over Testimony in C.I.A. Leak Case. New York Times, June 14, A1.
Joseph, Roger. 1975. Reviewability of Prosecutorial Discretion: Failure to Prosecute. Columbia Law Review 75:130–61.
Kades, Michael. 1987. Exercising Discretion: A Case Study of Prosecutorial Discretion in Wisconsin. American Journal of Criminal Law 25:115–50.
Kadish, Mortimer, and Kadish, Sanford. 1973. Discretion to Disobey. Stanford, CA: Stanford University Press.
Krug, Peter. 2002. Prosecutorial Discretion and its Limits. American Journal of Comparative Law 50:643–64.
Levenson, Laurie L. 1999. Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors. Fordham Urban Law Journal 26:553–71.
Lezak, Sidney I., and Leonard, Maureen. 1985. The Prosecutor's Discretion: Out of the Closet, Not Out of Control. In Discretion, Justice and Democracy: A Public Policy Perspective, ed. Pinkele, Carl and Louthan, William. Ames: Iowa State University Press.
Lippman, Jonathan. 2004. Preserving Safety and Access to the Courts. New York Law Journal 83:9.
Locke, John. 1986. The Second Treatise on Civil Government. New York: Prometheus Books. (Orig. pub. 1689.)
Logan, Wayne. 1990. A Proposed Check on the Charging Discretion of Wisconsin Prosecutors. Wisconsin Law Review 1990:16951743.
Loewenstein, Andrew B. 2001. Judicial Review and the Limits of Prosecutorial Discretion. American Criminal Law Review 38:351–72.
Meier, Anthony. 1998. Prosecutorial Immunity: Can Sec. 1983 Provide an Effective Deterrent to Prosecutorial Misconduct? Arizona State Law Journal 30:1167–82.
Miller, Frank. 1969 Prosecution: The Decision to Charge a Suspect with a Crime. Boston: Little, Brown and Company.
Misner, Robert L. 1996. Recasting Prosecutorial Discretion. Journal of Criminal Law and Criminology 86:717–77.
Miller, Marc, and Wright, Ronald. 2003. Criminal Procedures: Cases, Statutes, and Executive Materials. 2nd ed. New York: Aspen Publishers.
Montesquieu, Baron de. 1949. The Spirit of the Laws. New York: Hafner Publishing Company.
Orren, Karen. 2000. Officers Rights: Toward a Unified Field Theory of American Constitutional Development. Law & Society Review 34:873910.
Parks, Ann. 2004. Former Secretary of Defense Shares Views on War, Business and the Rule of Law. Daily Record, May 17. (accessed May 10, 2007).
Reiss, Steven Alan. 1987. Prosecutorial Intent in Constitutional Criminal Procedure. University of Pennsylvania Law Review 135:13651478.
Rose, Megan M. 1996. The Endurance of Prosecutorial Immunity: How the Federal Courts Vitiated Buckley v. Fitzsimmons. Boston College Law Review 37:1019–60.
Sarat, Austin, and Hussain, Nasser. 2004. On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life. Stanford Law Review 56:1307–44.
Schmitt, Carl. 1985. Political Theology. Chicago: University of Chicago Press.
Schwartz, Barbara A. 1983. The Limits of Prosecutorial Vindictiveness. Iowa Law Review 69:127208.
Slevin, Peter. 2005. The Prosecutor Never Rests. Washington Post, February 2, C1.
Subin, Harry, Weinstein, Ian S., and Mirsky, Chester L. 1993. The Criminal Process: Prosecution and Defense Functions. St. Paul, MN: West Publishing Co.
Tocqueville, Alexis de. 1945. Democracy in America. Vol. 1. New York: Knopf.
Vorenberg, James. 1981. Decent Restraint of Prosecutorial Power. Harvard Law Review 94:1521–74.
Washington Post. 2005. A Journalist Jailed. Editorial, July 7, A18.
Yale Law Journal. 1955. Comment: Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction. Yale Law Journal 65:209–34.


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