Prosecutorial Discretion and Republican Non-Domination
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Prosecutorial Discretion and Republican Non-Domination Dustin Crummett 1 Accepted: 25 August 2020/ # The Author(s) 2020
Abstract
Prosecutors in the US legal system have great power to interfere at their discretion in the lives of citizens, and face relatively few checks on the exercise of this discretion. The vast scope of the criminal law provides a pretext for prosecuting nearly anyone. Meanwhile, other features of the legal system, such as the way plea bargains are structured and the doctrine of prosecutorial immunity, further increase prosecutorial power. And existing institutional restraints on prosecutorial abuses, such as democratic accountability, the grand jury system, and the possibility of a selective prosecution defense, are mostly ineffectual. I draw on republican political theory, including insights from Philip Pettit and Elizabeth Anderson, to argue that this state of affairs gives prosecutors dominating, and therefore unjust, power over vast swathes of the public. I then survey some potential institutional changes which might help ameliorate the problem. Keywords Republicanism . Philosophy of law . Petit . Anderson . Overcriminalization
1 Introduction Sami Omar al-Hussayen, a Saudi Arabian immigrant to the US, was arrested in February 2003. He helped run websites for several Muslim charities, and some of these websites linked to other websites containing pro-Jihadi statements. For this, federal prosecutors accused him of providing material support for terrorism. (David Cole, an expert in terrorism law, has called the material support provision of the Patriot Act the “linchpin” of anti-terrorism prosecutions, “precisely because it doesn’t require proof that an individual engaged in any sort of terrorist act or even supported any terrorist activity.”) The jury, which was given forceful instructions by the judge about the scope of the First Amendment, quickly acquitted al-Hussayen on the terrorism charges. But in the course of investigating him, prosecutors also came to believe that al-Hussayen had violated certain immigration laws and charged him on those counts, too. The
* Dustin Crummett [email protected]
1
Ludwig-Maximilians-Universität München, Geschwister-Scholl-Platz 1, 80539 Munich, Germany
D. Crummett
jury acquitted him on some of the immigration charges but deadlocked on others. Rather than go through another trial, al-Hussayen reached a deal with prosecutors whereby he agreed to be deported back to Saudi Arabia (Silverglate 2009, 237–240). Now consider a case from Suffolk County, New York, where several local Democratic officials sued the Republican district attorney on the grounds that he’d filed spurious indictments against them in an attempt to discredit them for political reasons. The court ultimately dismissed the case, not because it rejected their factual claim, but because “absolute immunity shields [the DA’s] performance of advocative functions regardless of motivation” (Bernard v. County of Suffolk, 356 F.3d 495, 498 (2nd Cir. 2004)). This was an invocation of the
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