Prosecutors: discretion, distrust, and corrective transparency
Creators: name: Underwood II, Danny Ray
Publisher: name: No Publisher Supplied
Year: 2024

description: This project consists of three related chapters that argue the following. Prosecutors (as public fiduciaries) have a duty to counteract public distrust through acts of unilateral transparency and institutional reform. Prosecutors are the focus of this project because they are understood to have significant discretion within the criminal-legal system. Their ability to indict a suspect serves as a gate-keeping function for the criminal legal system and is largely unreviewable by other officials. Discretion (or ‘discretionary authority’) is a crucial aspect of governance that provides an agent with a set of options to achieve the purpose of his role. My view, the fiduciary theory of discretion, argues that the discretion of prosecutors, along with all public officials, is circumscribed by the purpose of their institution and their role within it, the legal limits placed on the use of public power, and the duty of loyalty owed to their jurisdiction. This set of options is the result of a trust-based relationship that the state has with the public. Distrust is the foreclosure of trust, and so threatens trust-based relationships (including the state-subject relationship). Public distrust results from the actions of government agents that demonstrate an incapacity or unwillingness to insulate the public’s interest while performing state functions. For example, brutal, mendacious, or exploitative policies and practices generate public distrust. This form of distrust threatens a state’s legitimacy; in other words, public distrust undermines the moral permission of government agents to create, apply, and enforce rules for a jurisdiction. To counteract distrust, public officials must take action that can undermine their distrustworthiness and demonstrate trustworthiness to the public. I offer corrective transparency, which is a combination of unilateral transparency with third-party mediators and policy reform, as an effective and appropriate means of counteracting distrust. This form of transparency is conditioned on public distrust and is different from standard accounts of democratic transparency, where transparency is an ongoing feature of a democratic society. Therefore, my conclusion is conditional: If public distrust can be shown to exist within a jurisdiction, then public officials have a strong reason to adopt corrective transparency. For prosecutors, I argue that a prosecutor who is in a distrusting jurisdiction must release grand jury records in cases where police officers kill in the line of duty. Due to the difficulty of legal interpretation, disclosure is made to the grand jury oversight committee, which is a panel of legal experts who regularly report their findings to the public.The three chapters are the following: “Prosecutors, Discretion, and Democracy: A Theory of Prosecutorial Ethics”, “Distrustworthy Authority: Public Distrust, Prosecutors, and the Grand Jury”, and “Corrective Transparency: How should public fiduciaries respond to public distrust?”. The first chapter introduces the reader to the fiduciary theory of discretion and applies it to prosecutors. The second chapter introduces the concept of public distrust and its impact on the normative legitimacy of government institutions. The final chapter combines the two preceding chapters into an argument for corrective transparency, which is a conditional form of transparency aimed at countering public distrust.