Prosecutorial Discretion and Republican Non-Domination

Ethical Theory and Moral Practice 23 (5):965-985 (2020)
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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.

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Dustin Crummett
University of Washington

Citations of this work

Micro-domination.Orlando Lazar - 2023 - European Journal of Political Theory 22 (2):217-237.
Micro-domination.Orlando Lazar - 2023 - European Journal of Political Theory 22 (2):217-237.

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References found in this work

On the People’s Terms.Philip Pettit - 2012 - Political Theory 44 (5):697-706.
The Impossibility of Republican Freedom.Thomas W. Simpson - 2017 - Philosophy and Public Affairs 45 (1):27-53.

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