The Discretionary Power of Public Prosecutors in Historical Perspective

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor\u27s role is relatively new. Based on archival research on the papers of the New York County District Attorney\u27s Office, The Discretionary Power of \u27Public\u27 Prosecutors in Historical Perspective explores the meaning of the word public as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave defendants\u27 rights for defense counsel to champion. However, rather than bowing to pressure to pursue the most severe charges in all cases, prosecutors entered plea bargains to lighten their workloads and sought capital verdicts for marginal individuals - especially domestic killers - to sate the public\u27s desire for retribution and deterrence. Because domestic killers violated widely held norms of masculinity and lacked political influence, seeking the death penalty in their cases represented a safe discretionary decision that did not anger the political bosses to whom the District Attorney\u27s office was beholden. As this article demonstrates, public interest is a mutable abstraction. In the nineteenth century, neither the newspapers nor the voters equated the term with defendants\u27 rights. Hence, modern scholars seeking to reform prosecutorial ethics must take greater care to define the public interest and its relevance to their agendas