The New Prosecutors

The power and prestige of the American prosecutor have changed dramatically over the past twenty years. Three generalizations appropriately describe this change. First, prosecutors wield vastly more power than ever before. Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune to ethical restraints. Only the last point may provoke some controversy; the first two are easily documented, and generally accepted by the courts and commentators. Part I of this article examines in greater detail this vast accretion of prosecutorial power, and explains how this transformation has resulted in a radical skewing of the balance of advantage in the criminal justice system in favor of the state. Part II then offers several suggestions on restoring some equilibrium to the process. Equilibrium should be restored because the prosecutor, with the power of the state behind him or her, should not have this unfair advantage. Reliability and fairness will suffer if the equilibrium continues its shift