Content provided in partnership with
prudent prosecutor, The
Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C
Yet as often as Simon reiterates this point, it is difficult to see how his theory can meet this criticism that it allows assertion of personal preferences. Simon does not give substantive content to justice. He acknowledges that different theories of justice will influence the decisions of individual lawyers. "Lawyers are not by nature systematic moral philosophers, but their working theories include intuitions from all these doctrines."199 Under the Contextual View they will employ these theories, these "intuitions," as a personal preference in order to provide content to the admonition to seek justice. This law-based theory allows continuing re-interpretation of the law in light of moral principles. Luban pinpoints the flaw succinctly when he states that "[t]he law-centered view of legal ethics turns out to be a morality-centered view in disguise."200 As such, it cannot solve the problem of unreviewed or arbitrary discretion, and cannot ensure uniformity of prosecutorial practices.
The Contextual View is based on the ethics of prosecutors. Simon does not say much, however, about the practice of prosecution. Nor does he devote much attention to the institutional restraints on discretion that are necessary in prosecutors' offices.201 It is the practices and institutions of prosecution, however, that cultivate good judgment in prosecutorial discretion.
C. PUBLIC MORAL JUDGMENT
not be governed by "entrepreneurs" who impose their own view of morality on everyone else. "[N]either the obedient servant nor the catch-me-if-you-can entrepreneur are proper models of official discretion."202
The entrepreneur comment is important in the context of prosecutors who possess so much discretion. We know that they are hard to catch; their work is unreviewed and unreviewable. Prosecutors are like politicians and other executive officials. A significant part of their role is to represent the people, not their own conceptions of justice and morality. "If the claim is that each executive official should decide whether or not a statute violates moral rights, and that each should refuse to carry out his enforcement functions whenever he makes that judgment, then the claim is wrong .... However broad the appropriate range for individual judgment, he is, first and foremost, a representative of society at large and of the legislature, which is society's formal voice."203 Professor Uviller was correct to insist that the virtuous prosecutor pursues the morality of the people he serves - public (not personal) morality. "I do not suggest that the honorable prosecutor be the slave of his electorate. Indeed, in many matters his duty clearly lies in the defiance of community pressures. But, within the confines of law, I would rather see his discretion guided by an honest effort to discern public needs and community concerns than by personal pique or moralistic impertinence."204
Our law is rooted in moral principles. "[S]ome legal principles, notably those of the criminal law, are plainly informed by the moral opinions of the community"205 and are based on moral concepts. But it is not substantive moral judgment that best illuminates discretion in criminal law. Like police discretion, prosecutorial discretion strikes a balance between collective and individual discretion - within a range of policies.
Find Research Guides for:
Find Featured Titles for: Home & Garden
Most Popular Articles in Reference
- The importance of understanding organizational culture
- Credit card attitudes and behaviors of college students
- What factors attract foreign direct investment?
- Libraries Need Relationship Marketing - mutual interest marketing concept, ...
- How to set performance goals: employee reviews are more than annual critiques
- More »