Dana Bazelon
Volume 77, Issue 4, 879-938
One of the persistent questions of criminal law is how prosecutorial authority is allocated among different sovereign entities: Courts and scholars have wrestled time and again with questions of how criminal enforcement power should be divided between federal and state law enforcement.
But the balance of power between state and local prosecutors has received far less attention, in large part because, until recently, the allocation of authority has been remarkably consistent: The overwhelming majority of state law enforcement power, by statute and by custom, has been concentrated in the hands of local prosecutors. In most states, state attorneys general have been left with only a few specialized areas of enforcement.
In recent years, however, this largely peaceful power-sharing arrangement has begun to shift in some states, primarily as a result of increased political and geographic polarization and the election of reform-minded prosecutors. These elections, and the reforms these leaders have
attempted, have triggered a response from statewide elected officials in many states who have sought to curtail their authority. This Article explores one high-stakes example of this larger trend of increased conflict between state and local prosecutors playing out in a set of dramatic court
proceedings: local prosecutors’ concessions of relief to defendants’ claims that they have been wrongfully convicted.
The backdrop to these conflicts is the confluence of two potent movements for criminal justice reform: the innocence movement and the progressive prosecutor movement. Increasing awareness of wrongful convictions, combined with the election of a set of reform-minded prosecutors in several cities, has led to the exonerations of hundreds of individuals. But in several states, state attorneys general have pushed back, seeking to intervene in post-conviction proceedings where local prosecutors wish to concede. The curious and novel set of conflicts that have resulted pit state and local prosecutors against each other and highlight an important gap in the way the legal system handles post-conviction claims. Courts have yet to develop a process by which to adjudicate post-conviction cases where prosecutors concede. This Article analyzes a set of these intra-state conflicts in Missouri, Pennsylvania, Tennessee, Maryland, and Utah. It ends with a set of recommendations on how courts should view attorneys general’s participation in post-conviction concessions by local prosecutors and a modest proposal for how prosecutors’ post-conviction concessions should be structured so as to provide courts with the information they need while not placing too great a burden on the defendant to prove his innocence.