Prosecution and Courts

by

Brian Forst

• LAST REVIEWED: 01 November 2017
• LAST MODIFIED: 28 March 2018
• DOI: 10.1093/obo/9780195396607-0035

Introduction

Prosecution and courts are at the heart and center of our criminal justice system. They serve as stages of case processing that follow the police arrest and precede the delivery of convicted defendants to correctional authorities. The prosecutor, usually a politically elected official, is the chief law enforcement officer in a jurisdiction (county, state, federal) yet carries out an administrative function within the executive branch of government. To put the prosecutor and court in perspective, it is useful to think about the two million or so felony arrests made in the United States annually. About a million end in conviction and sentencing each year. What happens between arrest and sentencing is driven by the prosecutor and court adjudication system. Yet remarkably little scholarly attention is paid to prosecution and adjudication, relative to the stages before (offending and policing) and after (corrections and subsequent offender behaviors). The information that follows aims to help interested people to learn about prosecution and adjudication and the forces that shape practices in these two critical and largely hidden-from-view stages of the criminal justice process.

Historical Background

Most accounts of typical prosecution and adjudication systems in the United States describe them as rooted in European systems of justice. Kress 1976 and Worrall 2008 identify three systems as especially significant: Dutch (the prosecutor is a local official), French (the prosecutor has substantial discretion to file charges), and English (the prosecutor can drop a case at any time). In the years immediately after the founding of the United States, prosecutors were appointed public officials, but a system of elected prosecutors evolved in the early 19th century, and by 1860 most prosecutors in the United States were elected to office (Jacoby 1980).

• Jacoby, Joan E. 1980. The American prosecutor: A search for identity. Lexington, MA: Lexington Books.

  Describes the American prosecutor as unique in terms of an electoral process that focuses on local interests and “the enforcement of essentially local laws” rather than national ones.

• Kress, Jack M. 1976. Progress and prosecution. Annals of the American Academy of Political and Social Science 423:99–116.

  DOI: 10.1177/000271627642300110

  Argues that the operations of the American public prosecutor can be better understood by examining the historical origins of the system in which the modern prosecutor operates: a system rooted in the common-law system of private prosecution.

• Worrall, John L. 2008. Prosecution in America: A historical and comparative account. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 3–26. Albany: State Univ. of New York Press.

  Offers an historical account of American prosecution that is accessible and thorough, yet fairly concise. This is the introductory chapter to a comprehensive anthology on prosecution.