5.8. Courtroom Players: Prosecutors
Lore Rutz-Burri
Prosecutors play a pivotal role in the criminal justice system, and work closely with law enforcement, judges, defense attorneys, probation and parole officers, victims services, human services, and to a lesser extent, jail and other correctional staff. The authority to prosecute is divided among various city, state and federal officials. City and state officials are responsible for prosecutions under local and state laws, and federal officials for prosecutions under federal law. As discussed in the previous sections, prosecutors are one of the most powerful actors in courtroom workgroup, a fact evidenced in this speech by former Supreme Court Associate Justice Robert Jackson, while he was the U.S. Attorney General:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. …” [1]. The boxes below describe the roles of prosecutors at the state and federal level.
State Prosecuting Attorneys
Prosecutors represent the citizens of the state, not necessarily a particular victim of a crime. States vary in how they organize the groups of attorneys hired to represent the state’s interest. Ordinarily, the official with the primary responsibility for prosecuting state violations is the local prosecutor who is referred to as the “district attorney”, “county attorney”, or “state’s attorney”. Local prosecutors are usually elected from a single county or a group of counties combined into a prosecutorial district. In many states, the state attorney general’s office has authority that trumps that of local prosecutors, but in practice, the state attorney general rarely intervenes in local matters. The state attorney general’s office will intervene, for example, if there is a conflict of interest or when requested by the district attorney. It is not uncommon for a small local prosecutor’s office – faced with the prosecution of a major, complex, time-consuming trial – to request the aid of the state attorney general’s office. In these smaller offices, there may be insufficient resources to handle complicated prosecutions and still keep up with the day-to-day filings and cases.
The prosecuting attorney and the attorney general ordinarily are the only officials with authority to prosecute violations of state law. City attorneys may be hired to prosecute city ordinances, but these attorneys primarily specialize in civil matters. When city attorneys and prosecuting attorneys have different policies for treating minor offenses, the result may be disparate, or different, treatment of similarly situated offenders. This raises a concern of inconsistent application of the law. Additionally, different county prosecutors may follow different policies on which matters they will charge, the use of diversion programs, the use of plea bargaining, and the use of certain trial tactics. To limit some of these differences, some states have used statewide training, and district attorneys’ conferences. Still, the policies and practices are far from uniform.
Generally, assistant prosecutors, called deputy or assistant district attorneys, are hired as “at will” employees by the elected district attorney. Historically, the political party of the applicant was a key criterion, and newly elected prosecutors would make a virtual clean sweep of the office and hire outsiders from the former office. Now, most offices hire on a non-partisan, merit-oriented, basis.
Most states require that the prosecutor be a member of the state bar. Some states also require that he or she have several years in the practice of law. Deputy district attorneys, on the other hand, are frequently fresh out of law school. They may have limited knowledge of state criminal law, as law school is designed to teach lawyers to enter any new field and educate themselves.
Federal Prosecuting Attorneys
Prosecutors in the federal system are part of the U.S. Department of Justice and work under the Attorney General of the United States. The Attorney General does not supervise individual prosecutions, but rather relies on the 94 United States Attorneys, one for each federal district. U.S. Attorneys are given considerable discretion, but they must operate within general guidelines prescribed by the Attorney General. The U.S. Attorneys have a cadre of Assistant U.S. Attorneys who do the day-to-day prosecution of federal crimes. For certain types of cases, approval is needed from the Attorney General or the Deputy Attorney General in charge of the Criminal Division of the Department of Justice. The Criminal Division of the Department of Justice (DOJ) operates as the arm of the Attorney General in coordinating the enforcement of federal laws by the U.S. Attorneys.
Find your U.S. Attorney here.
Selection and Qualifications of Prosecutors
Most local prosecuting attorneys are elected in a partisan election in the district they serve. State attorney generals may also have significant prosecutorial authority. They are elected in forty-two states (including PA), appointed by the governor in six states, appointed by the legislature in one state, and appointed by the state supreme court in another. State attorney generals serve between two to six-year terms, which can be repeated. Federally, senators from each state recommend potential U.S. Attorney nominees who are then appointed by the President with the consent of the Senate. U.S. Attorneys tend to be of the same political party as the President and are usually replaced when a new President from another party takes office.
Prosecutor’s Function
Prosecutors arguably have more discretion than any other official in the criminal justice system. They decide whether to charge an individual or not. Much has been written about the prosecutor’s broad discretion and the constraints on his or her discretion. If they choose not to prosecute, this is referred to as nolle prosequi, and this decision is largely unreviewable. Spohn and Hemmens (2012, p. 123) concluded in their review of the studies on prosecutor’s charging decisions that “these highly discretionary and largely invisible decisions reflect a mix of (1) legally relevant measures of case seriousness and evidence strength and (2) legally irrelevant characteristics of the victim and the suspect” [2].
Prosecutors guide the criminal investigation and work with law enforcement to procure search and arrest warrants. Following arrest, prosecutors continue to be involved with various aspects of the investigation. Their role includes meeting with the arresting officers, interviewing witnesses, visiting the crime scene, reviewing the physical evidence, determining the offender’s prior criminal history, making bail and release recommendations, appearing on pretrial motions, initiating plea negotiations, initiating diversions (pre-trial contracts between the government and the defendant which divert cases out of the system), working with law enforcement officers from other states who seek to extradite offenders, preparing the accusations to present to the grand jury, calling witnesses and presenting a prima facia case (i.e., presenting enough evidence which, when unrebutted by the defendant, shows that the defendant committed the crime) at a preliminary hearing, representing the state at arraignments and status conferences, conducting the trial, and, upon conviction, making sentencing recommendations while representing the state at the sentencing hearing.
In many communities, the prosecutor is the spokesperson for the criminal justice system and appears before the legislature to recommend or oppose penal reform. Prosecutors make public speeches on crime and law enforcement, take positions on requests for clemency for cases they have prosecuted, and work extensively with victims’ services offices, which may be an arm of the prosecutor’s office. In some communities, the prosecutor is also responsible for representing the local government in civil matters and may represent the state in civil commitment proceedings and answer accident claims, contract claims, and labor relation matters for the county. However, only a few counties have prosecutors who still perform this function. U.S. Attorneys still have substantial responsibilities for representation of the U.S. government in civil litigation, and there is generally a civil division, a criminal division, and an appellate division of the U.S. Attorneys office.
The American Bar Association (ABA) standards indicate that “the prosecutor’s [ethical] duty is to seek justice”. This means that the state should not go forward with prosecution if there is insufficient evidence of the defendant’s guilt or if the state has “unclean hands” (for example, illegally conducted searches or seizures, or illegally obtained confessions). Ethical and disciplinary rules of the state bar associations govern prosecutors, who must also follow state and constitutional directives when they prosecute crimes.
In the News: Did Allegheny County’s DA Violate PA’s Rules of Professional Conduct
In June 2021, the District Attorney for Allegheny County sent an email to his staff, advising them to not negotiate pleas with a local defense attorney who had publicly criticized the DA’s office. When evidence of the email emerged, many called for his ethical review by the State Attorney General and/or State Supreme Court. Read more about the case here. What actions would you recommend in this case?