The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.
Brett Curry and Banks Miller
Frank M. Häge
The Presidency plays a crucial role in the management and organization of the Council of the European Union’s work and the institution’s interactions with third parties. Formally, the Presidency just chairs the meetings of Council bodies; but over time, member states have endowed it with a range of procedural prerogatives to structure the Council’s agenda and broker agreements, which post holders can potentially use to advance their own private interests. The potential for abuse of these powers raises two related questions: first, why would member states grant these powers to the Presidency, and second, is the Presidency actually able to use these powers to advance its own priorities and policy preferences? In response to the first question, functionalist theories suggest that member states delegate powers to the Presidency to reduce transaction costs and solve collective action. According to Tallberg, member states grant the Presidency procedural prerogatives and provide it with administrative resources to ensure an efficient management of the Council’s agenda, avoid inadvertent negotiation failure or suboptimal negotiation outcomes, and provide adequate representation of the institution vis-à-vis external actors. Kleine’s theory suggests that the Presidency acts as an adjudicator of the legitimacy of demands for concessions by member states that find themselves in the minority but claim to experience strong domestic pressures for non-compliance. By making impartial and thus credible recommendations about whether the formal voting rule or consensus decision-making should apply in these situations, the Presidency contributes to the long-term sustainability of international cooperation. The two explanatory accounts disagree about whether the growing role of the Presidency reflects an incremental accumulation of powers over time in response to new tasks or just an extension of already existing powers into new areas. Historical research on the development of Presidency powers could shed more light on this topic. Responses to the second question about the actual influence of the Presidency can be distinguished according to whether they relate to the Presidency’s scheduling power or to its proposal-making power. Control over the schedule and agenda of meetings, as well as the time devoted to different issues during a meeting, allows the Presidency to affect the relative allocation of attention to different policies. Allowing the Presidency to structure the agenda according to its own priorities comes with tangible collective benefits while resulting in little redistributive costs for other member states. In contrast, the Presidency’s exercise of proposal-making power, through its first-mover advantage, control over the negotiation text, and its privilege to call a vote or declare consensus, leads to biased negotiation outcomes with little or no benefits for member states but direct and tangible redistributive consequences. Thus, the Presidency’s prerogatives are largely based on informal norms and behavioral practices, which can always be superseded by recourse to formal rules. However, member states have little incentive to do so when the Presidency exercises its scheduling power but ample incentive if it exercises its proposal-making power. Existing empirical research provides clear evidence that the Presidency can exercise both scheduling power and proposal-making power at least to some extent and under certain conditions. Interesting questions for future research relate to the overall size and prevalence of the effects of the Presidency’s powers, the mechanisms through which these effects are generated, as well as the conditions that explain their variation over time, across policy areas, and across member state characteristics.