Prosecution: History of the Public Prosecutor

The local district attorney enjoys an unusual degree of independence, not only from administrative superiors in a statewide system but from judges and grand juries as well. Over the years, the courts have reinforced his independence by allowing him a degree of "discretion" that contrasts dramatically with the control they have exercised over official action much less familiar to them. When victims have tried to compel prosecution on the ground that the district attorney was neglecting their and the public's interest, the courts have said the victims lack "standing," as in Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). When statutes or court rules require judicial approval for dismissing or reducing a charge or accepting a guilty plea, matters have generally been left to the prosecutor.

The concept of an expansive prosecutorial discretion traces to the body of law that dealt not with the initiation of a charge by the prosecutor but with its termination by filing a writ of nolle prosequi. The writ had existed in England since the sixteenth century, but there it was the attorney general of England who could intervene and dismiss charges if they were frivolous or insubstantial, or if they might somehow interfere with a Crown prosecution. Though private prosecution has virtually disappeared in the United States, and the local district attorney has a virtual monopoly of the power to prosecute, the nolle has remained with him, on the assumption that he inherited the prerogatives of the attorney general of England. Through it, he has been able to dispose of criminal cases without trial and without review. If he could dismiss at will, it has been assumed that he alone could choose to initiate prosecution or not to do so.

The use of the nolle attracted relatively little attention until the early twentieth century. But in the 1920s, as the political nature of the office became evident, attacks were directed at the evils of selective prosecution and nonenforcement associated with the county attorney's unlimited power. By 1930, thirty-one states had responded to the criticism and had adopted some form of judicial control (Criminal Procedure, pp. 895–897). But the new statutes and rules, which required prosecutors to file motions for dismissal and which authorized courts to grant or deny the motion, have had remarkably little impact. The courts have not often asked for explanations or examined carefully those that were given.

Judicial reluctance to intrude on the dismissal power was based on several factors. The courts felt constrained by the constitutional doctrine of separation of powers. And they feared that they might be drawn into administrative considerations beyond their competence. Less often articulated but perhaps more important, the prosecutor's discretion played a critical role in producing the guilty pleas that accounted for most criminal convictions. If courts had pressed to the limit their authority to pass on the dismissal of charges, they would have had to begin a process of appraising the relation between charging discretion and guilty pleas, many of which are entered because the defendant expects he will gain some advantage from sparing the government the need to prove him guilty.

Until 1970, that course was not a viable option because the courts had left the guilty plea, and the practices underlying it, almost entirely to the parties. In 1970, however, the Supreme Court for the first time acknowledged the legitimacy of plea bargaining (Brady v. United States, 397 U.S. 742 (1970)) and set the stage for some judicial review of that hitherto invisible process. Since then, courts and law reformers have had to consider the implications of allowing a public prosecutor—caught up in the "competitive enterprise of ferreting out crime"—to administer virtually unchecked a system of charging, dismissals, and guilty pleas. This trend has been augmented by the emergence of a victims' rights movement that would restore to victims some role in controlling the degree to which public prosecutors act as their surrogates in these matters.