The Evolving Role of the Public Prosecutor

Challenges and Innovations

Victoria Colvin, Philip Stenning, Victoria Colvin, Philip Stenning

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138606791
• eBook ISBN:
  9780429884948
• Topic: Scienze sociali
• Subtopic: Criminologia

The modern public prosecutor is a figure both powerful and enigmatic. Legal scholars and criminologists often identify "three essential components" of criminal justice systems: police, courts and corrections. Yet increasingly, the public prosecutor occupies a distinct role independent from any of these branches. Acting outside of the court, and therefore largely out of the public eye, the prosecutor's control over whether and what charges proceed to court can limit judicial discretion on sentencing, open pathways to alternative measures and even deny entry into the criminal justice system entirely. In this sense the prosecutor serves as a true "gatekeeper" to the criminal process.

This book addresses key aspects of the evolving role of domestic and international prosecutors in common law and civil law systems in the twenty-first century, and the challenges posed by this evolution. This collection of chapters from respected scholars takes an international, comparative approach and explores how these different legal systems have borrowed theorisations and articulations of the prosecutorial role from each other in adapting the office to changing conditions and expectations. The volume is structured around four main themes relating to the role of the modern prosecutor: the nature of the prosecutor's office, the role of the prosecutor in investigations, prosecutorial discretion and how it is exercised, and politicisation and accountability of prosecutors.

This book is essential for scholars and students in criminal justice, pre-law/legal studies, criminology, justice studies and political science, and is useful as a resource for those interested in legal change around the world.

Part I

The Office of the Modern Public Prosecutor

1Decoding Hegemony

Exploring the Discourse of a Prosecuting Elite

Robyn Holder¹

Introduction

The institutions of criminal justice have an extraordinary degree of power and authority over ordinary citizens. Whereas police and the courts are sharper in focus, prosecutors conduct their business largely unseen by the public eye. This chapter explores their hidden power through the discourse of a prosecuting elite. As “high mandarins” they do not produce case law and are parsimonious in their production of “treatise literature” (Gordon, 1984, p. 120). Rather they produce, apply and interpret law in liminal spaces through definitional authority and the exercise of discretion. This capacity allows prosecutors to represent “reality”, delineate what is possible and what is not, and to decide who is and is not a legitimate subject of the law’s application. This chapter traces the contours of prosecution thinking with appreciation of their enormous responsibility. Nonetheless the chapter situates the discourse within a political frame that highlights prosecution as a state organ.² From this standpoint the seeming benevolence of the mandarin administrator demands more forensic illumination.

Looking at Public Prosecutors

While comparatively under-studied, in recent years prosecution has attracted growing scholarly interest. One body of work describes prosecution forms, functions and authority.³ Another has examined the outcomes that flow from prosecution decisions and the effects on criminal justice and criminal policy (Tonry, 2012). These especially focus on the exercise of prosecution discretion regarding different offences, characteristics of the accused or victim, and criminal justice decision-making more generally.⁴ Others have examined the interactions between prosecutors and other criminal justice actors in shaping institutional practices and forming organisational cultures.⁵ The burgeoning institutions of international criminal justice have generated considerable attention to the office of the prosecutor (Reydams, Wouters and Ryngaert, 2012). In combination, studies describe an organisation that is critical to the functioning of criminal justice systems, its efficiency and its calibration with social and legal norms.

Yet those who work as prosecutors, who they are and what they think, are an unknown. One recent United States (U.S.) study considered diversity amongst prosecutors and between prosecution offices. Researchers interviewed over 200 prosecutors from nine locations. The study found differences in the “social architecture” of offices, their sense of “balance”, and their “sense of belonging to the wider legal community”. These differences related in part to whether prosecutors were “rookies” or “veterans” (Wright, Levine and Miller, 2014, pp. 28, 35, 41). The latter were less trial-oriented and more collegiate with defence counsel. They saw themselves and their views situated within a system of checks and balances.

Chief Prosecutors,⁶ however, are slightly more visible. They share surface similarity and network through transnational organisations such as the International Association of Prosecutors.⁷ Yet different histories, different legal and social environments, and different political and legislative mandates unsettle comparisons. For example, in the U.S., where state chief prosecutors are elected and federal attorneys are appointed, there is more visibility in terms of career aspiration, career trajectory and leaders’ impact (Eisenstein, 1978; Boylan, 2005; Bandyopadhyay and McCannon, 2014). However, in other common law countries Chief Prosecutors rarely give a public account of themselves.

This is not to say that Chief Prosecutors do not speak in public. Rather, their public appearances tend to be formal affairs in which they present their legislative mandate, set out their function, and elaborate prosecution policy (Bugg, 2007). They barely hint at “changes in social conditions” that may influence a Director’s decision-making (Hetherington, 1987, p. 10). The occasional memoir has illuminated working contexts. Every day, said one ex-Director, almost every decision “would make somebody unhappy” (Cowdery, 2012a, p. 220). Another reflected on her many disappointing encounters with the powerful (Del Ponte, 2011). These individual accounts speak to the highly political environments in which Chief Prosecutors work.

Conversations with “High Mandarins”

This chapter acknowledges that environment by styling prosecution leaders as mandarins. The narrative of six ex-Directors of Public Prosecution (DPP) in Australia is used as “mandarin materials” to de-code institutional logic (Gordon, 1984, p. 120). Elites such as these come with the usual problem of accessibility to researchers, but present additional challenges by virtue of their expertise. They are masters of specialised forms of knowledge “embedded in processes of modernisation”. Public service elites such as the DPP are also highly attuned to the political nature of their utterances. Through the research interview they actively shape the creation of knowledge. Yet their disciplinary and institutional settings impose “cognitive and social norms” that are habituated and routinised in their professional lives (Meuser and Nagel, 2009, pp. 17, 20). In their professional lives the ex-Directors can be viewed both as agents and as acted upon; but in their aggregated discourse they are more than individuals.

For this research approaches were made to people who had been (but were no longer) a DPP in Australia. Ex-Directors are not only expert but were further assumed to have greater latitude to speak freely about the challenges to the role. There are nine criminal jurisdictions in the Australian federal system.⁸ From these, 15 potential respondents were identified through a key informant and an internet search. Eight persons were approached directly with a request for an interview and six accepted the invitation. The six had practiced as Directors in six different criminal jurisdictions. Between them they had over 51 years of prosecuting experience and all were still active in other legal roles at the time of interview. Interviews were conducted in 2011 and comprised over ten hours of conversation in total. The interviewees were assured that no personal or professional characteristics would identify them. All were interviewed in a professional setting; surroundings that created a meta-narrative of authoritative ease.

Discourse analysis treats individual reflections as a whole and as connected to the production and reproduction of power (Chouliaraki and Fairclough, 1999). In single narrative form the interviews identify and map institutional orthodoxies. Interview quotations are de-identified but differentiated numerically from A1 to A6. In the first section, the ex-Directors narrate depictions of their mandarin status. The discourse is then briefly situated within the evolution of prosecution in the Australian context. Following sections then amplify core “codes” to the institutional logic of public prosecution embedded within the discourse.

Mandarin: Administrative and Doctrinal

A mandarin denotes a high official or bureaucrat in imperial China. This image of mandarin presents prosecution administrators as “just one cog in the process” (A3). They are pragmatic actors who prosecute “because you have a case” (A1). Theirs is a modest role to act “professionally with the body of evidence and wherever that and the law and the guidelines take him or her” (A3). This managerialist picture distances prosecution from the exercise of substantive authority.

For the mandarin administrator, criminal law is a piece of equipment – a “mechanism” (A1, A4) and a “brake” (A5). Sometimes it is “more like a sledge hammer than a jeweller’s pliers” (A1) and “pretty blunt” (A5). Law is a means to various ends.⁹ It is a mechanism “for keeping order … for controlling the power of other public officials … for protecting the community … for publicly expressing the community view of what ought to or ought not to be permitted … And essentially in its day-to-day activities it is a mechanism by which persons accused of things are prosecuted and dealt with” (A1). As an instrument, the criminal law is explained as a means “to ensure that the society can be managed in a way that allows people to get the benefits from the society” and “to regulate and promote positive interaction” (A4). These are administrators who are responsible and unsentimental.

Ideas of delivering justice in daily practice are articulated as being “professional” because “on a day-to-day basis you run the case that you are doing … the process takes over and you hope in some sort of way ultimately that it gets to, in general terms, a just result” (A1). As professionals they do “the best we can with the tools we have” (A2) to “achieve a generally acceptable outcome” (A3). Doing the best one can is scrutinising the case “as closely as you can” because “justice can’t be perfect” (A2). Not doing this means not being “properly prepared” and being unable or unwilling to make an “effort at persuasion” (A2). Justice is a bureaucratic “mission” (A6) not “some abstract concept” (A1).

Abstract notions do emerge through statements that, as Directors, they are “ministers of justice” (A4, A5).¹⁰ Pressed to describe justice in this guise and “I suppose you come out with a few basic things like convict the guilty and acquit the innocent, fairness, fair trial, sentences that were proportionate” (S4). At this end of their representational spectrum prosecutors take this “responsibility really really seriously” (A2). They will typically refer to their “duty” (A1, A4, A5, A6) and “obligation” (A1, A4) and invoke higher, if vague, principles. As doctrinal mandarins, prosecutors model constraint (A4). Being fair and just is “broad overall consistency”, “equality of treatment” (A5), “dealing with the individual fairly” (A6) and ensuring that “the same test applies to you and to me but not one for the high-profile cases and not for others” (A2).

From their position as “minister of justice” ex-Directors emphasise criminal law’s normative expression of “what ought to or ought not to be permitted” (A1) and as drawing “the lines within which the community can comfortably live” (A4). It is “the first and most basic system of norms” that any society – democratic or despotic – requires (A5). Furthermore, these norms involve “moral wrongdoing easily recognised and readily acceptable throughout the world” (A5). Law’s multiple relationship(s) to peoples range from it as a “subservient construct on society” (A4) to it as a “guard” (A2).

These pictures of the administrative and the doctrinal mandarin appear to suggest a disjuncture between the mundane and the lofty. However, the combination of administrative practice and their claim to buttress social stability is the precise feature that generates real and discursive authority. Discretionary decision-making directs attention “to the low-lying details of how law makes itself felt” on a day-to-day basis (Gordon 2012, p. 205); and, as high officials, prosecutors “project a discourse of inevitability and naturalness” (Harris 1997, p. 110). The ex-Directors associate law with an arc of social and political enlightenment, and appropriate and reformulate certain historical moments as inevitable modernisation.

A Civilising Trajectory

In England and Wales that modernisation rests on a long history of private initiation and carriage of proceedings,¹¹ and a couple of centuries’ debate about establishing a comprehensive Crown Prosecution Service (Rock, 2004). However, the assertion of an organic and grounded evolution made in relation to the English common law and its lay institutions becomes something different during the dramatic rupture of a militarised penal and later settler colony of Australia (Godfrey and Dunstall, 2005). The profound differences in social, economic and political practices including dispersed populations and Indigenous warfare (Hughes, 1986) caution against too many assumptions of commonality with English developments.

Yet contemporary ex-Directors assert that “we came to this country with the Magna Carta in our bac...

Table of contents

• Cover
• Fm Title
• Series Title
• Title Page
• Copyright
• Dedication
• Contents
• Notes on Contributors
• Introduction
• Part I The Office of the Modern Public Prosecutor
• Part II The Role of Prosecutors in Investigations
• Part III The Nature and Extent of Prosecutorial Discretion
• Index
• Back cover