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This chapter presents three cases that demonstrate the wide-ranging power and discretion of the American prosecutor. In each case, the prosecutor's actions deeply influenced the lives of the accused. The first case (Delma Banks) was almost executed by the state of Texas before the Supreme Court reversed the conviction. The second case show that when Dwayne Washington told prosecutors he couldn't prevent his actions, they followed through on their threat to charge him as an adult and as a result he faced charges that carried a life sentence in adult prison. Lastly, the favorable treatment afforded Andrew Klepper meant that he could avoid prison after committing a violent sex offense—a rare outcome in these types of cases. Moreover, a brief history of the American prosecutor, and the importance and dilemma of prosecutorial discretion, are provided. Furthermore, an overview of the chapters included in this book is given.

This chapter explores an emerging experiment among American prosecutors who use websites and annual reports to describe for constituents and other observers the patterns of decisions in their offices. This modest mechanism may point toward a larger response to the prosecutorial accountability deficit: functional transparency. The first part of the chapter focuses on two examples of websites and annual reports: those of the Washington State District Attorney in Kitsap County and the Tennessee District Attorney General in Shelby County. The second part connects this public reporting strategy to the two existing strategies that prosecutors around the world use to address the accountability deficit: electoral accountability in the United States, and bureaucratic accountability in Europe, Japan, and elsewhere. It suggests that in the face of increasing caseloads and limited resources, the two traditional responses to the accountability deficit are converging in both American and civil-law systems. The third part discusses how the intriguing but limited development of prosecutorial websites and annual reports can amplify the effects of the more traditional accountability strategies for prosecutors. It asks whether websites and reports might be a third piece of the accountability puzzle—one that would fall under the general heading of transparency.

This chapter considers the American prosecutor in the context of an adversarial process, focusing on the mix of prosecutorial powers and obligations within the structure and operation of the criminal justice system. It discusses how the law of plea bargaining displays confidence in adversarial process and gives prosecutors the power to threaten extreme trial penalties to induce guilty pleas from defendants who might otherwise have plausible legal defenses and may, in fact, be innocent. It highlights some key distinctions between federal and state prosecutors, and identifies overexpansive criminal codes as the root problem in both settings. The chapter concludes with possible remedies that might force state lawmakers to reform their penal code to avoid overwhelming the legal system and exposing their constituents to overly broad and punitive criminal provisions.

This chapter presents a comparative analysis of plea bargaining, focusing on a particularly controversial context: cases with weak evidence of guilt. Describing a hypothetical situation of questionable evidence, it considers how prosecutors in three major criminal justice systems— United States, Germany, and Japan—would likely proceed. After describing the relevant differences in the prosecutors' role in these countries, it raises several questions about the proper approach for prosecutors in evidentially weak cases. Although none of the systems discussed has a perfect solution to the problem of factually weak cases, the comparison may encourage rethinking of three key features of American-style plea bargaining: the practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge-bargaining decisions.

This chapter considers the relationship between the American prosecutor and the wrongful conviction phenomenon, as illustrated by contemporary miscarriages of justice. It examines the “Duke Lacrosse Case” and the “Central Park Jogger Case,” both of which involve demonstrated innocence and show the importance of DNA evidence to exonerations. The chapter next moves to a series of other significant but lesser-known examples of injustice and concludes by suggesting that miscarriages of justice can be cured by punishing identified malefactors.