University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2002 The Discretionary Power of "Public" Prosecutors in Historical Perspective Carolyn B. Ramsey University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Criminal Law Commons, Criminal Procedure Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, and the Legal History Commons Citation Information Carolyn B. Ramsey, The Discretionary Power of "Public" Prosecutors in Historical Perspective, 39 AM. CRIM. L. REV. 1309 (2002), available at https://scholar.law.colorado.edu/articles/560. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. 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Ramsey* INTRODUCTION .................................................... 1310 I. MODERN VIEWS OF PUBLIC PROSECUTION ..................... 1316 II. A HISTORY OF PROSECUTION IN NEW YORK COUNTY ............. 1323 A. Private Prosecution in Early New York .................. 1324 B. The Beginnings of Public Prosecution ................... 1327 C. Collectivized Crime Control and the Rise of Plea-bargaining ..... 1331 1. Scholarly Views ................................. 1331 2. Case Pressure in New York County ................... 1334 3. Nineteenth-century Criticisms of Plea-bargaining........ 1336 D. Machine Politics and Public Criticism of the District Attorney's Office ................................... 1337 1. PoliticalBosses and the Public ...................... 1338 2. The Role of the Press ............................. 1340 3. Norms of Public Prosecution in the Late Nineteenth Century ....................................... 1342 E. A Tale of Two Prosecutors:John Fellows and De Lancey Nicoll............................................ 1347 III. PROSECUTORIAL DISCRETION AND THE FATE OF FIRST-DEGREE M URDER DEFENDANTS .................................. 1352 A. Rationale and Methodology for the Case Study ............. 1352 B. The Dispositionof Murder Cases....................... 1356 1. Hyperbolic Views of ProsecutorialLeniency ............ 1356 2. Bringing Murderers to Trial ........................ 1360 C. Manly and Unmanly Violence ......................... 1366 * Associate Professor of Law, University of Colorado School of Law; M.A., Stanford University, 1991; J.D., Stanford Law School, 1998. I would like to thank Paul Campos, George Fisher, Sarah Krakoff, Cynthia Lee, Hiroshi Motomura, Bill Pizzi, Kevin Reitz, Tom Romero, Pierre Schlag, Arthur Travers, Phil Weiser, and Ahmed White for their insights and suggestions. I could not have conducted my research without generous help from Kenneth Cobb, Director of the New York Municipal Archives, and Jane Thompson, Head of Faculty Services at the University of Colorado Law Library. This Article also benefited from the diligent research assistance of Jacqueline Cooper, Olivia Denton, and Saskia Young. 1309 1310 AMERICAN CRIMINAL LAw REVIEW [Vol. 39:1309 1. First-degreeMurder Convictions .................... 1366 2. Plea-bargains .................................. 1383 CONCLUSION ............................................ 1391 INTRODUCTION History makes a fleeting appearance in recent debates about reforming the prosecutor's office. Opponents of the way discretion is currently exercised often contend that because a prosecutor is a public servant, he ought to protect defendants' rights as well as convict the guilty.' When this position is couched in historical terms, it appeals to a prosecutorial self-image, purportedly rooted in the past, to promote fairness and to curtail the excesses of the adversary system. Bruce Green asserts, for example, that the "prosecutor's duty to 'seek justice' . dates back well over a century." 2 Advocates of victims' rights and the re-privatization of criminal justice also tend to assume that private prosecution in early America gave way to impartial, or even defendant-protective, government control.3 This com- 1.See Bennett L. Gershman, The Prosecutor's Duty to Truth, 14 GEo. J. LEGAL ETHICS 309, 337 (2001) (arguing that, as "a minister of justice to protect innocent persons from wrongful convictions," the prosecutor has "a duty to make an independent evaluation of the credibility of his witnesses, the reliability of forensic evidence, and the truth of the defendant's guilt" beyond that imposed by the codes); Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 FORDHAM URB. L.J. 607, 636 (1999) (contending that prosecutors have "a heightened duty to ensure the fairness of the outcome of a criminal proceeding from a substantive perspective-to ensure both that innocent people are not punished and that the guilty are not punished with undue harshness"); H. Richard Uviller, The Neutral Prosecutor:The Obligation of Dispassion in a PassionatePursuit, 68 FORDHAM L. REv. 1695, 1697 (2000) ("Neutrality ...puts the prosecutor in the position of advocate for all the people- including the person against whom the evidence has been accumulating."). See also Charles D. Breitel, Controls in Criminal Law Enforcement, 27 U. CHI. L. REv. 427, 430 (1960) (maintaining that, while prosecutorial discretion is inevitable and even desirable, the type of discretion that is justified is that which "can only save... [but] never kill"). 2. Green, supra note 1,at 612. See also Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B.C. L. REv. 789, 792 (2000): [C]ourts and commentators from the earliest days of the American legal system to the present have viewed pursuit of the public interest as a critical function of the public prosecutor. It has long been the view in American law that the prosecutor's paramount duty is to serve justice, rather than to secure a conviction in a given case. Matthew S. Nichols, No One Can Serve Two Masters: Arguments Against PrivateProsecutors, 13 CAP. DEF. DIG. 279, 284-86, 287 (2001) (disputing view that "the private prosecutor is a right deeply embedded in Virginia common law" and contending that public model, which supposedly dates from the seventeenth-century, "prevent[s] vengeance from replacing justice"). Angela Davis subscribes to the view that the American system of public prosecution arose from discontent with the abuses and inefficiency of private prosecution. See Angela Davis, The American Prosecutor:Independence, Power and the Threat of Tyranny, 86 IOWA L. REV.393,449-50 (2001). She argues that the architects of the public system desired to make it fair; however, she believes that they failed in this endeavor because they did not "adequately consider the private nature of prosecutorial decisions and the lack of public access to information about how and why prosecutors make decisions." Id. at 448. 3. Cf.BRUCE L. BENSON, To SERVE AND PROTECT: PRIVATIZATION AND THE COMMUNITY IN CRIMINAL JUSTICE 222-23 (1998) (arguing that English crown transformed prosecutorial function from private to public by removing 2002] "PUBLIC" PROSECUTORS IN HISTORICAL PERSPECTIVE 1311 mon narrative is largely a myth. Instead, public prosecution evolved from a private model in a slow, uneven manner in response to fears of social disorder. The dominant view in the second half of the nineteenth century urged public prosecu- tors to seek convictions with zeal, leaving the responsibility to protect the rights of the accused to defense counsel. Plea-bargaining aroused criticism, not because it deprived defendants of a jury trial, but because prosecutors accepted guilty pleas to charges that the public viewed as insufficient to fit the defendants' crimes.4 This Article presents a legal and cultural history of the public's relationship to criminal prosecution that participates in two scholarly conversations. It adds a historical dimension to the current debate about the duties of the modem prosecu- tor. The centrality of the term "public" in almost any discussion of prosecutorial discretion highlights the need to explore the evolving relationship between prosecutors and the people. My research also contributes to a growing body of legal history on criminal justice administration in the United States that includes work by Lawrence Friedman, George Fisher, and Allen Steinberg. 5 One must be cautious about invoking the origins of public prosecution either to supplant the goal of "winning" with a greater commitment to fairness or to criticize the