Wednesday, November 3, 2010
Ronald F. Wright (pictured) and Marc L. Miller (Wake Forest University - School of Law and University of Arizona - James E. Rogers College of Law) have posted The Worldwide Accountability Deficit for Prosecutors (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
In democratic governments committed to the rule of law, the prosecutor must be accountable both to the people and to their laws. The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. Because individual responsibility is the origin of good behavior among prosecutors, it does not generate the level of public trust that one might expect in a government of laws. Institutional strategies to guarantee prosecutor accountability all fall short of the mark. Call it the accountability deficit.
The answers that various legal systems offer to this problem appear at first to be quite different. Prosecutor accountability in the United States builds on electoral accountability. This external check is designed to compensate for the shortcomings of weak judicial review and overbroad criminal codes in the United States. By contrast, the rest of the world’s criminal justice systems rely on internal bureaucratic accountability. Prosecutors join a centralized bureaucracy and then follow explicit articulated guidance in crucial areas of the job, enforced by regular internal review.
The two forms of accountability, however, have more in common than casual observation suggests. Systems in the United States, driven by long-term growth in prosecutors’ offices and the arrival of information technology, rely more heavily all the time on internal bureaucratic controls. Likewise, systems elsewhere in the world rely on public oversight and respond to public input. Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world.
This convergence of the two main mechanisms for achieving prosecutorial accountability, however, does not mean that the accountability gap is about to disappear. The scale of the responses that will close the accountability gap must combine boldness and practicality, as modeled in the law of sentencing in the 1980s.