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This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing charging decisions. Specifically, we suggest that much of the leading scholarship seems to be built on the premise that, as a descriptive matter, as part of the doctrine of separation of powers, and for practical reasons, courts lack the authority and ability to review the prosecutorial charging decision. We argue, however, that the nearly categorical assumption among many scholars that courts do not have the authority to review charging decisions reflects an undue attention to federal law and federal courts, and as a result, reveals only part of the story.

Based on an examination of the state court experience, we find that, contrary to the assumptions of many scholars, both as a descriptive matter and a normative matter, in many states and in a variety of contexts, courts have exercised both adjudicatory and disciplinary review of charging decisions. In so doing, state courts have sometimes deemed separation of powers arguments less compelling in the face of judicial responsibility and authority to insure the fair administration of justice. Moreover, even to the extent that most courts remain reluctant to review charging decisions through the adjudicatory process, the courts in every state exercise the inherent authority to regulate the practice of law in their own jurisdiction, through which they enact and implement ethics rules that regulate the practice of law and, at times, subject lawyers to discipline. We conclude that, in further exercise of their inherent authority, courts have the ability to play a more active role in reviewing charging decisions by interpreting current rules and adopting enhanced rules regulating the charging decision.

Building on these observations and arguments, this Essay briefly considers the potential utility of disciplinary regulation as a remedy for abuses of prosecutorial discretion. Toward that goal, the Essay explores whether, in comparison with other approaches, disciplinary rules might provide a more appropriate and effective mechanism for responding to the problem of abuse of prosecutorial power. Part I of the Essay briefly documents concerns over actual and perceived abuses of prosecutors’ charging power. Part II then summarizes and critiques a number of leading proposals for reform of prosecutors’ charging discretion. Finally, Part III analyzes the potential utility of disciplinary review as an alternative avenue of reform. On the basis of this analysis, the Essay concludes that judicial supervision of prosecutors through the disciplinary process may not be vulnerable to some of the objections that have been leveled against other proposals.

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12 Duke J. Const. L. & Pub. Pol'y 1