Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Five College Fortieth Anniversary Professor at Amherst College. He is former president of the Law & Society Association; the Association for the Study of Law, Culture and the Humanities; and the Consortium of Undergraduate Law and Justice Programs. His research focuses on the death penalty, law and culture, and the relationship of law and sovereignty. He can be contacted at [email protected].
Conor Clarke is a student at Amherst College. He has written for the New Republic and Slate. He can be contacted at [email protected].
The authors gratefully acknowledge the support of Amherst College's Axel Shupf Fund for Intellectual Life.
Abstract
Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.
By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.
