For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial power: that prosecutors pursue justice. It argues that prosecutors should be freed from the “justice” standard and, instead, at least on the federal level, be responsive only to clearly articulated executive policy. To demonstrate how prosecutors would function in a system where they are not required to do justice, this article examines criminal enforcement of the federal government’s neutrality policy in 1793. This was the new government’s first organized foray into criminal prosecution. President George Washington and his administration proceeded based on national interest and expected their attorneys, the United States District Attorneys, to adhere and enforce the national policy. The Article begins by establishing that federal prosecutors represent the government and not the people’s interests. It then defines how the people are represented in a republican government with a particular focus on how members of Washington’s administration interpreted the concept of representation. It then describes how Washington and his administration enforced neutrality through criminal prosecution. Against this backdrop, the final section argues that our modern federal prosecutorial problems can be resolved if we reconceive the federal prosecutor’s function as a policy enforcer rather than a quasi-judicial figure.
Representing the United States Government: Reconceiving the Federal Prosecutor's Role Through a Historical Lens,
Notre Dame J.L. Ethics & Pub. Pol'y
Available at: https://scholarship.law.nd.edu/ndjlepp/vol31/iss2/2