Academic journal article Harvard Law Review

Prosecutorial Power and the Legitimacy of the Military Justice System

Academic journal article Harvard Law Review

Prosecutorial Power and the Legitimacy of the Military Justice System

Article excerpt


In the American criminal justice system, the prosecutor is a uniquely powerful individual. (1) Due to the huge number of prosecutable crimes, he has vast discretion in bringing and dismissing charges, negotiating plea bargains, trying cases, and recommending sentences. Because of these great powers, a prosecutor has a duty beyond that of an ordinary advocate in an adversarial legal system. (2) The legal rules establishing this regime of great prosecutorial discretion evolved in response to a vast number of concerns both within and outside the criminal justice system, including racism, economic inequality, and the need for administrative efficiency. As a result of this variety of motivating principles, the structure of prosecutorial power in the civilian criminal justice system lacks a coherent underlying principle; instead, it struggles to accommodate many contributing forces.

Prosecutorial discretion is similarly broad in the military justice system, where it is wielded by a senior commander who faces many of the same issues as civilian prosecutors. However, military justice is a distinct legal system outlined by the Uniform Code of Military Justice (3) (UCMJ). As it has emerged since the mid--twentieth century, this system has largely developed around the concern that the system appear fair and legitimate. The rules controlling military prosecutorial power reflect and coalesce around this concern. Consequently, the structure of military prosecutorial power strongly manifests the value placed on perceived legitimacy. The coherence of the military rules demonstrates the value of a system of justice that is consciously designed according to a limited number of fixed principles.

Part II of this Note explains the development of the modern civilian and military criminal justice systems. Part III briefly assesses the notion of legitimacy in criminal justice. Parts IV and V then analyze two aspects of the process of criminal adjudication--charging discretion and guilty pleas--and consider the effects of different civilian and military procedures on the perceived legitimacy of the two systems. Part IV argues that by situating the authority to choose which defendants to prosecute at a higher level and requiring a thorough adversarial investigation before felony proceedings, the military justice system increases the accountability and perceived legitimacy of charging decisions. Part V argues that height-ened scrutiny of guilty pleas, higher-level control of plea bargaining, and substantive limitations on the scope of plea bargains produce a military system that projects a higher value for accuracy and procedural fairness. Part VI concludes that the manifestation of the military justice system's institutional value for legitimacy in the structure of prosecutorial power stems from the conscious design of the system with legitimacy as a core concern.


Some legal systems are grown and some are made. (4) Grown systems evolve according to no central plan, are usually incredibly complex, and owe any orderly features to equilibrium, not design. (5) Made systems develop out of the plan of one or several creators, can be understood by looking to the intent of those creators, and function according to a limited number of independent variables. (6)

A. Evolution of the Civilian Criminal Justice System

The civilian criminal justice system and the legal rules that regulate it are best understood as a grown order. (7) The structure of the system is enormously complex: it is formed by the intersection of numerous codes, statutes, and judicial decisions. Moreover, law governing the criminal justice system emerged in response to a multitude of institutional concerns. Early in the Supreme Court's development of modern criminal procedure doctrine, considerations of popular perceptions of fairness were important to the Court's decisions. …

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