Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

30 Pages Posted: 6 Apr 2016

See all articles by Austin Sarat

Austin Sarat

Amherst College

Conor Clarke

Yale University, Law School

Date Written: April 1, 2008


Today it is widely recognized in both academic literature and the main-stream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality. By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.

Keywords: sovereignty, prosecution, prosecutorial discretion, law and society

Suggested Citation

Sarat, Austin and Clarke, Conor, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law (April 1, 2008). Law and Social Inquiry, Vol. 33, No. 2, 2008, Available at SSRN:

Austin Sarat

Amherst College ( email )

Political Science Box 2259
Amherst, MA 01002
United States
413-542-2308 (Phone)

Conor Clarke (Contact Author)

Yale University, Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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