Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law

By Barkow, Rachel E. | Stanford Law Review, February 2009 | Go to article overview
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Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law

Barkow, Rachel E., Stanford Law Review


     A. The Danger
     B. The Path to Unchecked Power

     A. Internal Separation
     B. Other Checks on Agency Power


     A. Other Mechanisms for Checking Prosecutorial Power
        1. Judicial oversight
        2. Limit plea bargaining or charging discretion
        3. Greater legislative or public oversight
        4. Prosecutorial guidelines or open processes
     B. The Benefits of Using Internal Separation



It is hard to overstate the power of federal prosecutors. The number of federal criminal laws has exploded in recent decades, (1) and the punishments attached to those laws have increased markedly. (2) There are now approximately 200,000 federal prisoners, (3) making the federal prison system the largest in the country, eclipsing each and every state. (4)

Federal prosecutors control the terms of confinement in this vast penal system because they have the authority to make charging decisions, enter cooperation agreements, accept pleas, and recommend sentences. In the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the vast majority of cases. (5) It is only in the rare 5% of federal cases that go to trial that an independent actor reviews prosecutorial decisions. (6) In the 95% of cases that are not tried before a federal judge or jury, there are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion to bring charges, to negotiate pleas, or to set their office policies. (7) In a national government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. (8) They have the authority to take away liberty, yet they are often the final judges in their own cases. (9)

One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Standard judicial and legislative oversight has failed to correct this power grab by prosecutors. Despite the arguments of scholars for greater judicial supervision, (10) federal judges continue to rubber stamp cooperation, charging, and plea decisions. (11) Similarly, although commentators have called on Congress to rein in prosecutorial discretion with federal criminal code reform (12) and the repeal of mandatory minimum sentences, (13) members of Congress lack the incentives to enact these reforms as long as they reap political rewards for looking tough on crime. (14) Although scholars have made persuasive cases for these reforms, they are simply unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor's office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors' offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. (15) The problems posed by federal prosecutors' combination of adjudicative and enforcement functions are the very same issues raised by the administrative state--and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions.

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