What is worrisome about delegating so much authority to prosecutors?
Short Paper 2: At the end of page 27, Doug Husak echoes William Stuntz’s proclamation that “criminal law is not, in any meaningful sense, law at all”. What leads Husak to this conclusion?
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PAGE 27
What is worrisome about delegating so much authority to prosecutors? Surely the objection cannot be that prosecutors fail to use their power to punish even more individuals than are sentenced at the present time. From the perspective of a legal philosopher, the answer is simple. Even when exercised wisely, this discretionary power, unchecked and unbalanced by other branches of government, is incompatible with the rule of law. This deterioration in the rule of law produces injustice. Because real power in our criminal justice system is not exercised in conformity with any principle that commentators have been able to formulate, no one is able to answer the question that legal realists like Oliver Wendell Holmes identified as fundamental to understanding what the law is. According to Holmes, the law consists in “prophecies of what the courts will do in fact, and nothing more pretentious.”130 Without endorsing the whole school of jurisprudence Holmes sought to defend, he clearly articulated the central concern of laypersons who make inquiries about the law. Holmes recognized that experts who profess to know the law should be able to make a fairly accurate “prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.”131 But these predictions become notoriously unreliable in a system in which real power, and the decisions that govern the fate of individuals, is wielded with so much discretion.
Remarkably, few criminal theorists are vocal in protesting this erosion of the principle of legality, despite their enthusiasm about the ideal of establishing a government of laws and not of men. Whatever the ideal of the rule of law might entail, it seemingly means that the distinction between conduct that is and is not punished should depend primarily on the content of the laws that legislatures enact. No one, however, should hazard a prediction about who will be sentenced simply by examining criminal statutes. The real law—the law that distinguishes the conduct that leads to punishment from the conduct that does not—cannot be found in criminal codes. Even those police and prosecutors who pledge fidelity to the rule of law could not hope to honor their commitment because they receive almost no guidance from legislators about what they really are expected to do. The number and scope of criminal laws guarantee that neither police nor prosecutors will enforce statutes as written. As Stuntz observes, “the greater the territory substantive criminal law covers, the smaller the role that law plays in allocating criminal punishment.”132 We are already well past the point at which statutes are the dominant factor in explaining who will or will not incur criminal liability. As a result, one might conclude that the substantive criminal law itself is not very important in the context of our system of criminal justice.133 As Stuntz bluntly concludes, “criminal law is not, in any meaningful sense, law at all.”134
