Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

Authors

Conor Clarke, Washington University in St. Louis School of LawFollow
Austin Sarat, Amherst College

Document Type

Article

Language

English (en)

Publication Date

2008

Publication Title

Law & Social Inquiry

Abstract

Today it is widely recognized in both academic literature and the main-stream 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.

Keywords

Sovereignty, Prosecution, Prosecutorial Discretion, Law and Society

Publication Citation

Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 L. & Soc. Inquiry 387 (2008)

Repository Citation

Clarke, Conor and Sarat, Austin, "Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law" (2008). Scholarship@WashULaw. 684.
https://openscholarship.wustl.edu/law_scholarship/684