"Prosecutors in Robes" by Schuman

Jacob Schuman (The Pennsylvania State University, Penn State Law) has published "Prosecutors in Robes" on SSRN. Here is the abstract: 

Criminal law enforcement is traditionally considered a core executive power. Yet federal district judges exercise that power tens of thousands of times a year by initiating proceedings to revoke probation and supervised release. “Prosecutors in robes” is an insult sometimes levied by criminal defense attorneys against judges who are allegedly biased in favor of the government. In this Article, however, I do not use that phrase to suggest that district judges are acting in bad faith. Instead, I mean it literally. When judges initiate revocation proceedings, they wield a prosecutor’s power to enforce criminal law.

Combining constitutional, historical, and empirical analyses, I argue that judge-initiated revocation violates the form and function of the separation of powers. Formally, initiating a revocation proceeding is a type of criminal law enforcement, which is authority that the Constitution vests solely in the President and was originally understood as an executive power. Functionally, my empirical study of federal sentencing data shows that initiating revocations aggrandizes the judiciary’s role in the criminal justice system by weakening democratic accountability, undermining uniform policy, and compromising judicial impartiality.

While most legal scholars believe that a strong and independent judiciary is necessary to check prosecutorial overreach, I contend that federal district judges have become “prosecutors in robes” who themselves must be checked by the executive branch. To restore the separation of powers to revocation proceedings, I propose that only prosecutors should be allowed to initiate them, while judges should be limited to adjudication and sentencing. This change would ensure that no single branch of government enjoys total authority to impose criminal punishment. Our Constitution separates powers to protect liberty and prevent tyranny. A prosecutor in a robe is a king.