The Pedagogical Prosecutor

Abstract

Scholarship on prosecutorial discretion is almost entirely preoccupied with crafting regulations that promote prosecutorial accountability. Accountability, however, is a two-way street. Existing scholarship does not recognize prosecutors' unique capacity to hold legislators and citizens accountable for their preferences, biases, and blind spots. Drawing on political theory, this essay proposes a novel framework for conceptualizing the prosecutor's role in a pluralist, democratic society. The choice to prosecute or decline a case can produce significant social and political meaning: e.g., affirming the value of a victim's life, validating a community's sense of loss, or highlighting an offender's depravity. Hate-crime and "stand-your-ground" laws illustrate prosecutors' broad discretionary power to generate social and political meaning. These laws were often controversial when enacted. Enactment, however, did not exhaust the basis for controversy. Rather, vague statutory language simply left it to prosecutors to decide when and how the laws should apply. The furor that erupted after George Zimmerman shot Trayvon Martin reveals how fraught those choices can be. While Zimmerman's acquittal might appear to vindicate prosecutors' initial choice to decline the case, that view is incorrect. I argue that prosecutors should use their expressive power towards pedagogical ends; prosecuting Zimmerman was consistent with that ideal, the acquittal notwithstanding. Behaving pedagogically means actively promoting political dialogue amongst legislators and citizens. This ideal values public airing over conviction maximization. I conclude by identifying some of the obligations that attend the pedagogical ideal and steps that might encourage prosecutors to embrace it. Doing so will not just promote better criminal justice, but a healthier democracy.

Keywords: criminal procedure, prosecutor, district attorney, discretion, criminal justice, prosecutorial discretion

JEL Classification: K14, K39, K41, K40, K42, K49