On Monday, September 26, 2011, Duke Law Professor Sara Sun Beale kicked off the 2011-12 Hoffinger Criminal Justice Forum season with a lecture entitled “Prosecutorial Independence: Comparing the U.S. to its Common Law Cousins.” Beale opened her lecture by highlighting the prevalence of elected prosecutors in the United States and the tension between partisan politics and the values of prosecutorial independence and neutrality.
To illustrate the dangers of mixing partisan politics with prosecution, Beale relied on a case that she and other residents of Durham, North Carolina know particularly well: the infamous Duke lacrosse team prosecution, where several players accused of raping an African-American woman were eventually cleared of wrongdoing by DNA evidence. The local prosecutor, driven by the pressures of a looming election, gave dozens of media
interviews, publicly announcing his conviction that the players were guilty while simultaneously failing to turn over exculpatory evidence. That prosecutor was subsequently disbarred for his misconduct throughout the investigation. According to Beale, the U.S. is alone among common law systems in creating this sort of tension—where the pressures and incentives generated by political accountability can directly undermine prosecutorial ethics.
In searching for solutions, Beale examined some of the reforms adopted by our “common law cousins” over the last several decades. The most common reform in the countries she discussed is removing the decision whether to prosecute individual cases from officials who are politically accountable. Many countries, such as Australia and Canada, now have both a politically accountable minister of justice and/or attorney general, and a non-political Director of Public Prosecutions. But a few common law countries rely more on the private bar. In New Zealand, serious cases are initially filed by the police and then taken over by a lawyer in private practice who holds the Crown Warrant in that judicial district. England is undergoing a transition: the Crown Prosecution Service headed by the Director of Public Prosecutions makes the initial decision to prosecute, but private barristers try the majority of cases.
Beale ended her lecture with an open-ended question that framed the discussion during the question and answer session that followed her lecture: what are the tradeoffs between the prosecutorial independence in other countries and public accountability? As Beale’s lecture made clear, by making prosecutors directly politically accountable, the United States is positioned near the extreme end of the spectrum with respect to the rest of the world, and we should start questioning whether it is a good place to be.
–Student fellow Diana Wang (‘14)