American Prosecutors as Principals and Agents

The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.