University of Southern California

Prosecutorial Constitutionalism

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Article by Eric S. Fish
From Volume 90, Number 2 (January, 2017)

As adversary lawyers, prosecutors seek to convict defendants. But as government officials who take an oath of office, prosecutors must interpret and apply the Constitution in good faith. These two roles are at odds. The first pushes prosecutors to argue for narrow readings of defendants’ constitutional rights, while the second pushes prosecutors to enforce the Constitution evenhandedly. The crucial question is: when should prosecutors be adversary advocates, and when should they be quasi-judicial implementers of constitutional protections? This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails to fully protect constitutional rights. This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges underenforce constitutional rights out of concern for the separation of powers or the limitations of judicial doctrine (for example, with regard to charging decisions and plea bargains). In such situations, prosecutors should preserve defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.

But individual prosecutors should not be expected to decide by themselves when to switch between these two roles. Rather, prosecutors’ offices should, and in some cases already do, establish constitutional protections through internal policies that govern prosecutorial decisionmaking. Such policies can be found in places like the American Bar Association’s Rules of Professional Conduct, the United States Attorneys’ Manual, and the State of Washington’s Recommended Prosecution Standards. Indeed, although these documents are not presently understood as tools of constitutional enforcement, they protect defendants’ constitutional rights above the baseline set by judges in a wide variety of areas: charging decisions, plea bargaining, grand jury proceedings, the disclosure of exculpatory evidence, exonerations, and more. Consequently, these systems of regulation for prosecutors function as important (and understudied) sites of constitutional norm articulation.

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