Hostname: page-component-76fb5796d-22dnz Total loading time: 0 Render date: 2024-04-25T11:08:56.835Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  27 December 2018

Austin Sarat  and
Conor Clarke
Get access Rights & Permissions [Opens in a new window]

Abstract

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.

Type
Articles
Information
Law & Social Inquiry , Volume 33 , Issue 2 , Spring 2008 , pp. 387 - 416
Copyright
Copyright © American Bar Foundation, 2008 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Ackerman, Bruce. 2004. The Emergency Constitution. Yale Law Journal 113:1029–91.Google Scholar
Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press.Google Scholar
Agamben, Giorgio. 2005. The State of Exception. Chicago: University of Chicago Press.Google Scholar
Baker, Newman. 1935. The Prosecuting Attorney: Legal Aspects of the Office. Journal American Institute of Criminal Law and Criminology 26:647–98.Google Scholar
Blackstone, William. 1850. Commentaries on the Laws of England. New York: Harper.Google Scholar
Bodin, Jean. 1992. On Sovereignty: Four Chapters from The Six Books of the Commonwealth. Trans. and ed. Franklin, Julian. Cambridge: Cambridge University Press.Google Scholar
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.Google Scholar
Brady, Surell. 2000. Arrests Without Prosecution and the Fourth Amendment. Maryland Law Review 59:1–128.Google Scholar
Cass, Ronald. 2001. The Rule of Law in America. Baltimore: Johns Hopkins University Press.Google Scholar
Cisneros, Henry. 2004. Extra Spice for American Culture. Financial Times of London, May 24, 17.Google Scholar
Davis, Angela J. 2001. The American Prosecutor: Independence, Power, and the Threat of Tyranny. Iowa Law Review 86:393–465.Google Scholar
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.Google Scholar
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 76:341–438.Google Scholar
Fallon, Richard. 1997. “The Rule of Law” as a Concept in Constitutional Discourse. Columbia Law Review 97:1–56.Google Scholar
Ford, Daniel A., and Breall, Susan. 2000. Violence Against Women: Synthesis of Research For Prosecutors. Washington, DC: National Institute for Justice.Google Scholar
Frase, Richard S. 1980. The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion. University of Chicago Law Review 47:246–330.Google Scholar
Goldstein, Abraham. 1981. The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea. Baton Rouge: Louisiana State University Press.Google Scholar
Green, Stuart. 1988. Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute. Yale Law Journal 97:488–508.Google Scholar
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. http://writ.news.findlaw.com/hamilton/20031023.html (accessed May 10, 2007).Google Scholar
Harris, Paul. 2006. Saint Patrick's Day. Guardian of London, February 12. http://www.guardian.co.uk/usa/story/0,,1707777,00.html (accessed May 10, 2007).Google Scholar
Harvard Law Review. 1998. Uniform Federal Rules of Attorney Conduct: A Flawed Proposal. Harvard Law Review 111:2063–80.Google Scholar
Henning, Peter J. 1999. Prosecutorial Misconduct and Constitutional Remedies. Washington University Law Quarterly 77:713–838.Google Scholar
Huntington, Samuel. 1996. The Clash of Civilizations and the Remaking of World Order. New York: Simon & Schuster.Google Scholar
Jackson, Robert H. 1940. The Federal Prosecutor. American Judicial Society 24:18–20.Google Scholar
Jacoby, Joan 1980. The American Prosecutor: A Search for Identity. Lexington, MA: Lexington Books.Google Scholar
Johns, Margaret. 2005. Reconsidering Absolute Prosecutorial Immunity. Brigham Young University Law Review 2005:53–154 Google Scholar
Johnston, David, and Rutenberg, Jim. 2006. No Rove Charges over Testimony in C.I.A. Leak Case. New York Times, June 14, A1.Google Scholar
Joseph, Roger. 1975. Reviewability of Prosecutorial Discretion: Failure to Prosecute. Columbia Law Review 75:130–61.Google Scholar
Kades, Michael. 1987. Exercising Discretion: A Case Study of Prosecutorial Discretion in Wisconsin. American Journal of Criminal Law 25:115–50.Google Scholar
Kadish, Mortimer, and Kadish, Sanford. 1973. Discretion to Disobey. Stanford, CA: Stanford University Press.Google Scholar
Krug, Peter. 2002. Prosecutorial Discretion and its Limits. American Journal of Comparative Law 50:643–64.Google Scholar
Levenson, Laurie L. 1999. Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors. Fordham Urban Law Journal 26:553–71.Google Scholar
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.Google Scholar
Lippman, Jonathan. 2004. Preserving Safety and Access to the Courts. New York Law Journal 83:9.Google Scholar
Locke, John. 1986. The Second Treatise on Civil Government. New York: Prometheus Books. (Orig. pub. 1689.)Google Scholar
Logan, Wayne. 1990. A Proposed Check on the Charging Discretion of Wisconsin Prosecutors. Wisconsin Law Review 1990:1695–1743.Google Scholar
Loewenstein, Andrew B. 2001. Judicial Review and the Limits of Prosecutorial Discretion. American Criminal Law Review 38:351–72.Google Scholar
Meier, Anthony. 1998. Prosecutorial Immunity: Can Sec. 1983 Provide an Effective Deterrent to Prosecutorial Misconduct? Arizona State Law Journal 30:1167–82.Google Scholar
Miller, Frank. 1969 Prosecution: The Decision to Charge a Suspect with a Crime. Boston: Little, Brown and Company.Google Scholar
Misner, Robert L. 1996. Recasting Prosecutorial Discretion. Journal of Criminal Law and Criminology 86:717–77.Google Scholar
Miller, Marc, and Wright, Ronald. 2003. Criminal Procedures: Cases, Statutes, and Executive Materials. 2nd ed. New York: Aspen Publishers.Google Scholar
Montesquieu, Baron de. 1949. The Spirit of the Laws. New York: Hafner Publishing Company.Google Scholar
Orren, Karen. 2000. Officers Rights: Toward a Unified Field Theory of American Constitutional Development. Law & Society Review 34:873–910.Google Scholar
Parks, Ann. 2004. Former Secretary of Defense Shares Views on War, Business and the Rule of Law. Daily Record, May 17. http://findarticles.com/p/articles/mi_qn4183/is_20040517/ai_n10061891 (accessed May 10, 2007).Google Scholar
Reiss, Steven Alan. 1987. Prosecutorial Intent in Constitutional Criminal Procedure. University of Pennsylvania Law Review 135:1365–1478.Google Scholar
Rose, Megan M. 1996. The Endurance of Prosecutorial Immunity: How the Federal Courts Vitiated Buckley v. Fitzsimmons. Boston College Law Review 37:1019–60.Google Scholar
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.Google Scholar
Schmitt, Carl. 1985. Political Theology. Chicago: University of Chicago Press.Google Scholar
Schwartz, Barbara A. 1983. The Limits of Prosecutorial Vindictiveness. Iowa Law Review 69:127–208.Google Scholar
Slevin, Peter. 2005. The Prosecutor Never Rests. Washington Post, February 2, C1.Google Scholar
Subin, Harry, Weinstein, Ian S., and Mirsky, Chester L. 1993. The Criminal Process: Prosecution and Defense Functions. St. Paul, MN: West Publishing Co.Google Scholar
Tocqueville, Alexis de. 1945. Democracy in America. Vol. 1. New York: Knopf.Google Scholar
Vorenberg, James. 1981. Decent Restraint of Prosecutorial Power. Harvard Law Review 94:1521–74.Google Scholar
Washington Post. 2005. A Journalist Jailed. Editorial, July 7, A18.Google Scholar
Yale Law Journal. 1955. Comment: Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction. Yale Law Journal 65:209–34.Google Scholar