Prosecution: History of the Public Prosecutor

In the early years of the republic, the prosecuting attorney was a minor judicial official. Only five of the first thirteen state constitutions refer to an attorney general, and all include the office in the judicial, rather than the executive, article. Sometimes he was separately referred to in statutory provisions establishing a state's judicial system. The transformation of the prosecutor from a minor functionary of the local court to a powerful member of the executive branch began in the 1820s with the rise of Jacksonian democracy. During this period, the limited democracy of the early republic was supplanted by a system of extensive franchise and popular election of officials, including judges. With the election of local judges came the election of the local prosecutor. Today, there are only a few states in which prosecutors are appointed, usually by the governor. Although the attorney general in some states retains a theoretical right to prosecute, or to supervise or displace local prosecutors, the authority is so rarely exercised as to lose practical significance.

Local election of prosecutors originated as an incident of the election of judges, but it did not disappear when such elections were abandoned in most states. At the very time it was concluded that the need to stand for election could not be reconciled with "judicial" impartiality, local election was said to make the prosecutor more truly a "lawyer for the people." In time, his roots in local politics made him a more powerful figure than the local judge. Courts continued to describe him as a quasi-judicial official—more than a "mere adversary"—but he was viewed increasingly as an executive, rather than a judicial, figure. This perception was reflected in the new state constitutions, which now listed him as a member of the executive branch, along with other officials of local government.

This politically based and decentralized system was subjected to its most severe criticism in the 1920s and 1930s, when criminal laws proliferated in an effort to deal with increasingly heterogeneous populations, more complex societal phenomena, and more crime. Crime surveys of the period revealed that most prosecutors were elected for a short term, their assistants were usually underpaid political appointees, and many were employed only part-time. The office was found to suffer too often from incompetence, corruption, and political opportunism.

Nevertheless, there has been little inclination to abandon the system of elected local prosecutors. Direct accountability to the people has been treated as a virtue in an increasingly bureaucratic society. Reliance has been placed on other measures to improve efficiency and raise the level of accountability, chief among them the movement to full-time prosecutors and a greater emphasis on professionalism. In addition, criminal activity transcending county lines has led to greater efforts at coordination among local prosecutors, to vesting the attorney general of the state with specified prosecuting functions, and, on occasion, to the creation of statewide special prosecutors. The federal government, too, has expanded its role in dealing with "local" crime. Through statutes enacted under the commerce and other federal powers, many of which overlap state criminal laws, the local United States attorney can often step in to remedy grosser forms of local inaction, undercharging, corruption, or incompetence.