The Crisis in America's Criminal Courts by William R. Kelly

Author:William R. Kelly
Language: eng
Format: epub
Publisher: Rowman & Littlefield Publishers
Published: 2021-06-11T00:00:00+00:00

The result, according to Stuntz, is that prosecutors become the de facto chief deciders of what crimes are prosecuted and, in turn, what criminal laws are enforced.

Longtime observers of prosecutors suggest that they may, in effect, legislate the criminal law through their charging decisions. As Stuntz argues, what laws are enforced determines what constitutes the criminal law. For example, while marijuana possession is still on the books in most states, many local law enforcement and local prosecutors are deciding not to enforce it and not prosecute it. The net effect is that laws against marijuana possession do not exist in those jurisdictions. Eric Luna makes a similar point in his piece “Prosecutor King.”3

Prosecutors provide the indispensable link between police investigation and courtroom adjudication, with the power to impact every decision along the way . . . Practice demonstrates a concentration of authority in a single office, where prosecutors not only execute the law in the conventional sense, but also effectively adjudicate matters by their decisions in individual cases. From another vantage point, prosecutors may even legislate criminal law, setting the penal code’s effective scope over an entire caseload through collective decision making of varying levels of coordination.

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