Rethinking Family-Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases
Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.
This Article shows how family-court prosecutors’ roles have never been fully theorized. Family courts historically avoided prosecutors (or lawyers of any kind). When children’s and parents’ lawyers appeared in the 1960s to 1970s, family-court prosecutors soon followed, but without any consensus about how they should make charging decisions or how their authority intersects with agencies or intake officers. This Article provides the first detailed description and critique of the varying state laws governing family-court prosecutors.
This Article argues that family-court prosecutors should work for and represent juvenile justice or child protection agencies, which should have authority to determine which cases to file. Agencies are best suited to balance the competing interests at stake in family-court cases and to choose specific cases on which to focus their limited resources. Agency control over intake could reduce delinquency prosecutions for relatively low-level offenses, which have particularly large racial disparities. Finally, an agency model should lead to limited judicial review of decisions to prosecute cases—a long-elusive goal in scholarship regarding criminal prosecutors.