Prosecution: History of the Public Prosecutor

There are several systems of criminal prosecution in the Western world, each distinguished in substantial part by the extent to which a public prosecutor decides whether crime should be charged. In England, any member of the public may prosecute but the attorney general has complete authority to dismiss the charge, and most prosecutions are conducted by the local police. In continental Europe, the initiative lies almost entirely with the state, acting through a public prosecutor or an investigating magistrate; charging discretion is said to be nonexistent or subject to judicial review. American criminal prosecution is a hybrid. Like continental systems, it is an institutionalized and public function; like its English ancestor, it places extraordinary emphasis on local autonomy and charging discretion.

It is misleading, however, to refer to an American system of prosecution because there are fifty-one and more such systems in the United States—one for the federal government and one for each of the states, with the state systems in turn comprised of many subsystems. Typically, state prosecution is organized along county lines under the direction of an elected and autonomous prosecutor, variously designated as county attorney, district attorney, or state attorney. Only rarely is he part of a statewide department of justice. State police, too, have limited functions; the bulk of law enforcement is carried on by the cities and towns, each of which has its own police force. In these fragmented and nonhierarchical systems, the power of the county attorney to determine whether charges should be filed or dismissed has made him the critical link between the state's criminal code, its judicial system, and local police forces.

At first glance, the federal government has a structure that is more reminiscent of the national systems that are typical in continental Europe. The Attorney General of the United States is the chief federal prosecutor and heads the Department of Justice, which includes the Federal Bureau of Investigation and ninety-one United States attorneys, each supervising offices in a federal judicial district and prosecuting federal crime in that district. In practice, however, the United States attorney is independent of all but nominal supervision—the result of strong centrifugal elements that are rooted in the nature of the American federal system, the vast distances subject to federal criminal law, and the strong tradition of local law enforcement.

This entry will discuss how English and Western European patterns evolved in the United States into a distinctively American system of criminal justice, characterized in the states by an autonomous local public prosecutor endowed with virtually exclusive authority to prosecute and, in most places, elected by the people.