Abstract

For decades, state and local prosecutors won election by promising to be tough on crime. Today, a new breed of prosecutor has gained prominence by campaigning on, and then implementing, reform agendas. Rather than emphasize the crimes they plan to prosecute, these reform prosecutors promise to use their discretion to stop the prosecution of certain crimes and halt the application of certain sanctions. They base their decision not on a lack of resources, but rather on a belief that the enforcement of those laws is unwise or unjust. Critics have decried such policies as both inappropriate and undemocratic. Prosecutors, critics say, are responsible for upholding the law, not undermining it, and a blanket refusal to enforce categories of crimes or apply specific sanctions is effectively rewriting the law. These critics argue that reform prosecutors thus violate fundamental separation-of-powers norms.

Though recent state court decisions have lent support to these arguments, they are deeply mistaken. Critics of reform prosecutors are quite right that the traditional discretion granted to prosecutors could, if left unchecked, undermine core separation ofpowers principles and thereby threaten both individual liberty and the rule of law. But their recommendation to resolve that problem with a formal understanding of separation of powers would prove not just ineffective but even counterproductive. The parchment barriers they propose will simply encourage prosecutors to hide their inevitable policy choices from voters and the other branches. This outcome may in turn undermine the best available tools to discipline prosecutorial discretion: democratic accountability provided by the ballot box and checks and balances. Left unchallenged, these separation-of-powers-based criticisms of reform prosecutors may spread to other state courts, strengthen political claims that reform prosecutors are acting inappropriately, and perhaps even convince some reform prosecutors to abandon their agendas.

Fortunately, an alternative exists. We can and should encourage all prosecutors-reform or otherwise-to express their plans openly, confident that such action is consistent with a well-established understanding of separation of powers that predates our founding and requires functional checks and balances rather than a formal separation of functions. We should encourage this openness because it will both encourage debate over criminal justice issues that reform prosecutors have helped spark and subject prosecutorial policies to the voters for approval and other branches for critique. Such a system of checks and balances represents the best available protection against the abuse ofprosecutorial power.

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