Northwestern Pritzker School of Law Chicago, Illinois
Today, a national debate rages about the functioning of our criminal justice system. Is it fair? Does it serve the ends of justice and public safety? Does it apply equally to all? Prosecutors, endowed with both autonomy and immunity, hold immense power within this system. They control secret grand jury proceedings, who will be prosecuted, and the specifics of charges. Moreover, those charges are often based on complex laws -- and enforced by long mandatory minimum prison sentences -- creating strong incentives for defendants to capitulate to lesser charges, perhaps even to crimes they did not commit. Indeed, more than 90% of both federal and state court cases never go trial, but instead are resolved through plea bargaining. Autonomy and secrecy, complex criminal code and mandatory minimums -- in combination, these factors have given prosecutors enormous leverage, and the opportunity to wield it relentlessly and selectively. The results, critics charge, are the undermining of the right to jury trial, mass incarceration, public skepticism regarding equal justice, and immense pressure on every defendant.
Yet there can be no justice without empowered prosecutors. And is abuse really endemic? Isn't the national crime rate down over the long-term, showing that these powers work? And would changes reducing the leverage of prosecutors in the criminal justice system weaken their critical responsibility to prosecute crimes of great complexity, keep communities and the nation safe, and secure justice? Do prosecutors have too much power?