Document Type

Book Chapter

Publication Date

2017

DOI

https://doi.org/10.1017/9781316941461.007

Abstract

Contemporary understanding of prosecutorial discretion is influenced by anachronistic conceptions of judgment and organization. These conceptions have lost ground dramatically in professions like medicine, teaching, and social work. Yet, they remain prominent to a unique degree in law. They are embedded both in the general professional culture and in legal doctrine. Innovative prosecutorial practices have emerged in recent decades, but their progress has been inhibited by attachment to these older conceptions.

The older conceptions understand professional judgment as a substantially tacit and ineffable decision by a single professional grounded in a relatively static and comprehensive discipline. The associated model of organization emphasizes decentralization, pre-entry training and certification, and a reactive, complaint-driven approach to error detection. This view contrasts professionalism to bureaucracy – decision driven by stable, rigid, and hierarchically-promulgated rules. The professions operate in realms where bureaucracy is often ineffective, and the case for professional judgment, traditionally understood, rests in part on the assumption that it is the only alternative to bureaucracy.

Yet, models of judgment and organization that are neither bureaucratic nor traditionally professional have established themselves in many sectors of both the private and public realms. These models, which might be called postbureaucratic – or in one important variation, experimentalist – see decision as governed by explicit but provisional norms and arising from multidisciplinary group deliberation. They imply forms of organization that combine local autonomy with centralized monitoring, foster continuous learning and revision, and take proactive approaches to error detection and correction.

I appeal in this paper to models of post-bureaucratic or experimentalist organization both to emphasize the extent to which prosecution has lagged other sectors in its understanding of judgment and organization, and to connect the important innovations that have occurred in prosecution to developments in other fields.

The analysis of competing conceptions of organization has implications for the relation of prosecutorial discretion and democracy. Post-bureaucratic organization has two features that promise to enhance democratic accountability – greater transparency and greater potential for stakeholder participation.

Disciplines

Law | Legal Profession

Comments

This material has been published in "Prosecutors and Democracy: A Cross-National Study", edited by Maximo Langer & David Sklansky. This version is free to view and download for private research and study only. Not for re-distribution or re-use.

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