“Cerberus at the Gate”: The fundamental connection between prosecutorial discretion and justice

Prosecutors are routinely accused of somehow failing the public whom they serve. Controversy arises when the prosecutor is seen to be too harsh, too lenient, too politically active, not politically active enough, and so on. What unites the voices in this conversation is some set of presupposed beliefs about the proper constraints on prosecutorial discretion. Yet, there is no clear normative framework which offers a general explanation of how and why prosecutorial discretion should be constrained. This article devises such a framework, arguing that prosecutorial discretion is fundamentally connected to the concept of justice, and that the prosecutor should be bound to do justice rather than simply serve the law. Questions about how to constrain prosecutorial discretion must therefore be answered by reference to some conception of justice, and prosecutors must be evaluated based on this, not simply based on whether they have complied with legal rules.