The American Criminal Justice System: How It Works, How It Doesn't , and How to Fix It

By Gerhard Falk | Go to book overview

Chapter 2
A BRIEF HISTORY OF
CRIMINAL PROSECUTION IN
THE UNITED STATES

PRIVATE PROSECUTORS

Although the American criminal justice system is largely derived from the British model, this is not true of the role of the prosecutor. Unlike trial by jury, habeas corpus, and the right to counsel, the private prosecutorial function in use in Britain in the eighteenth century, and even continuing in part today, was not adopted in this country. Instead, the United States chose to institute public prosecution for criminal offenses but nevertheless obtained the assistance of private lawyers.

There had been several attempts to introduce public prosecution to Great Britain, but these did not succeed until 1880 when Sir John Maule was appointed the first director of public prosecution with very limited powers and responsibilities. It was not until 1985 that an amendment to the Prosecution of Offences Act finally established the Crown Prosecution Service. This service has the power to charge possible offenders in all but minor cases and has become the public’s prosecutor in a manner similar to that already in existence in the United States since the beginning of the American Republic.1 The U.S. Constitution does not provide for a public prosecutor. Instead, the office developed gradually from the common law based on the colonial experience. The outcome of this evolution is an office that has, according to Supreme Court Justice Robert H. Jackson, “more control over life, liberty, and reputation than any other person in America.”2 In common law, a crime was viewed as an act against the victim but not the state, so that the target of the crime and/or that individual’s friends had to prosecute the offender privately. This meant that in Britain, there was no public prosecution until 1879, when the rather weak office of Director of Public Prosecution was created. Yet, even that office was charged with the responsibility to act as a private citizen interested in law and order. The English prosecutor even then was far more limited than has ever been true in the United States. In fact, it has been estimated

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The American Criminal Justice System: How It Works, How It Doesn't , and How to Fix It
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Introduction vii
  • Chapter 1 - The American Police 1
  • Chapter 2 - A Brief History of Criminal Prosecution in the United States 23
  • Chapter 3 - Prosecuting Violent Crime and Sex Offenses 45
  • Chapter 4 - Prosecuting Wwhite- Collar Crime 69
  • Chapter 5 - Defending the Accused 89
  • Chapter 6 - The American Jury 109
  • Chapter 7 - Courts and Judges 129
  • Chapter 8 - The Prison-Industrial Complex 151
  • Chapter 9 - Probation and Parole 173
  • Chapter 10 - The Death Penalty- Non Omnis Moriar 193
  • Epilogue 215
  • Bibliography 221
  • Index 241
  • About the Author 251
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