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History of the Public Prosecutor - British And Colonial Origins, The Prosecutor
As An Elected Local Official, A Monopoly Of The Power To Prosecute

Prosecution: History of the Public Prosecutor - The Prosecutor As An Elected
Local Official

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executive increasingly

In the early years of the republic, the prosecuting attorney was a minor
judicial official. Only five of the first thirteen state constitutions refer to
an attorney general, and all include the office in the judicial, rather than the
executive, article. Sometimes he was separately referred to in statutory
provisions establishing a state's judicial system. The transformation of the
prosecutor from a minor functionary of the local court to a powerful member of
the executive branch began in the 1820s with the rise of Jacksonian democracy.
During this period, the limited democracy of the early republic was supplanted
by a system of extensive franchise and popular election of officials, including
judges. With the election of local judges came the election of the local
prosecutor. Today, there are only a few states in which prosecutors are
appointed, usually by the governor. Although the attorney general in some states
retains a theoretical right to prosecute, or to supervise or displace local
prosecutors, the authority is so rarely exercised as to lose practical
significance.

Local election of prosecutors originated as an incident of the election of
judges, but it did not disappear when such elections were abandoned in most
states. At the very time it was concluded that the need to stand for election
could not be reconciled with "judicial" impartiality, local election was said to
make the prosecutor more truly a "lawyer for the people." In time, his roots in
local politics made him a more powerful figure than the local judge. Courts
continued to describe him as a quasi-judicial official—more than a "mere
adversary"—but he was viewed increasingly as an executive, rather than a
judicial, figure. This perception was reflected in the new state constitutions,
which now listed him as a member of the executive branch, along with other
officials of local government.

This politically based and decentralized system was subjected to its most
severe criticism in the 1920s and 1930s, when criminal laws proliferated in an
effort to deal with increasingly heterogeneous populations, more complex
societal phenomena, and more crime. Crime surveys of the period revealed that
most prosecutors were elected for a short term, their assistants were usually
underpaid political appointees, and many were employed only part-time. The
office was found to suffer too often from incompetence, corruption, and
political opportunism.

Nevertheless, there has been little inclination to abandon the system of
elected local prosecutors. Direct accountability to the people has been treated
as a virtue in an increasingly bureaucratic society. Reliance has been placed on
other measures to improve efficiency and raise the level of accountability,
chief among them the movement to full-time prosecutors and a greater emphasis on
professionalism. In addition, criminal activity transcending county lines has
led to greater efforts at coordination among local prosecutors, to vesting the
attorney general of the state with specified prosecuting functions, and, on
occasion, to the creation of statewide special prosecutors. The federal
government, too, has expanded its role in dealing with "local" crime. Through
statutes enacted under the commerce and other federal powers, many of which
overlap state criminal laws, the local United States attorney can often step in
to remedy grosser forms of local inaction, undercharging, corruption, or
incompetence.

Prosecution:
History of the Public Prosecutor - A Monopoly Of The Power To Prosecute
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History of the Public Prosecutor - British And Colonial Origins

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