Power, Discretion, and the Landscape of Contemporary Prosecution

In this chapter, we examine prosecutorial power and discretion through the lens of contemporary reforms. Specifically, we argue that increased awareness of wrongful convictions and the rise of mass incarceration, alongside related initiatives adopted by reform-minded prosecutors, have impacted the institution of prosecution, organizations, and individuals. Criticisms of the legal system that are rooted in over-incarceration and systemic errors—like miscarriages of justice—have demanded change at the institutional level, thereby influencing structural and strategic shifts towards favoring non-traditional methods among contemporary prosecutors. This has, in some ways, divided prosecutors in the twenty-first century. We explore modern prosecutorial practices with a two-pronged theoretical approach. First, we use institutional logics theory to assess the relationship between reforms and the landscape of contemporary prosecution. Second, we contend that the criticisms that spurred these reforms can, in part, be addressed by improving prosecutorial compliance. We explore compliance and accountability from the perspective of legal endogeneity theory.