As the United States debates once again what it wants from its criminal justice system, the role of the American prosecutor is under scrutiny. After the explosion of prosecution and incarceration rates that occurred over the past half-century, most observers agreed that the American criminal justice system had become too large, locking up scores of people too often and for too long. Much of the debate around the construction of the American carceral state has focused on the increased power of the prosecutor and the ever-more aggressive approach to charging decisions and sentencing recommendations. Over the past decade, in response, voters have elected “progressive prosecutors” in many jurisdictions. The results of this phenomenon are mixed.
This Article deals not with traditional prosecutors nor with “progressive prosecutors” but with absent prosecutors. Many states have addressed the dramatically increased size and cost of the system by allowing for low-level offenses to be adjudicated by police officers, with no involvement by any public prosecutor. This practice violates basic principles of due process and the separation of powers. Moreover, it allows for the unchecked and unnecessary expansion of the criminal justice system without forcing that system to internalize the costs of its operations. This Article proposes alternatives to the current system of low-level criminal adjudication that can address public safety while also avoiding the net-widening effects of the current system.
