Balancing Accountability and Independence: Prosecutorial Discretion in the United States and Italy

Check out my latest paper on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4783527/.

Abstract

Prosecutors around the globe perform the vital function of enforcing criminal prohibitions passed by their democratically elected legislatures. They act on behalf of the public and seek to restore and reinforce popular norms by bringing criminal proceedings. Yet, prosecutors are constrained by insufficient resources and overbroad penal statutes. To better serve the public interest, prosecutors are given varying levels of discretionary enforcement power in different constitutional systems. Central to that calculus is the tradeoff between accountability and independence. A fully independent prosecutor might wholly disregard popular mandate in favor of personal desires, whereas a fully accountable prosecutor might use discriminatory practices to satisfy their electoral majority.

The United States and Italy adopted vastly different prosecutorial systems. In the United States, local prosecutors are highly independent — most district attorneys answer only to the public through uncontested elections. The federal prosecution service, on the other hand, is fully accountable to the chief executive. In Italy, prosecutors are formally situated within the judicial branch. They enjoy complete independence both hierarchically from other prosecutors and horizontally from other government branches, with little accountability. I argue that despite widespread discretion among American prosecutors, federalism and hierarchical policymaking at the federal level offer important institutional accountability mechanisms for otherwise independent local prosecutors. In contrast, Italy’s prosecution service is organized as one national body and lacks the constitutional authority to implement hierarchical prosecution policies. To remedy the accountability deficit in Italian prosecutorial discretion, Italy should consider implementing reforms that emphasize federalism and hierarchical policymaking ability.

Ryan O’Sullivan is a J.D. candidate at Northwestern University Pritzker School of Law, and a graduate of Georgetown University.