Operational autonomy and prosecutorial discretion

Prosecutors are the most powerful officials in the criminal justice system. Their routine, everyday decisions control the direction and outcome of criminal cases and have greater impact and more serious consequences than those of any other criminal justice official. The most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable. Prosecutors make the most important of these discretionary decisions behind closed doors and answer only to other prosecutors.

Autonomy and Surveillance

The slaves were allowed to leave the master’s property with a pass, and any white person could ask to see the pass. The plantations were not inclosed by razor-wire fences or high walls; they weren’t prisons. If the slave owners had made their properties like prisons, they would have placed a much greater burden on themselves. But by giving slaves a pass and giving any white person the right to ask to see the pass, the slave owners delegated power to those whites. Surveillance was thus extended throughout the exterior of the slave owner’s property, even as far as the northern states.

The “failure” of the prison system

Penality would then appear to be a way of handling illegalities, of laying down the limits of tolerance, of giving free rein to some, of putting pressure on others, of excluding a particular section, of making another useful, of neutralizing certain individuals and of profiting from others. In short, penality does not simply ‘check’ illegalities; it ‘differentiates’ them, it provides them with a general ‘economy’.

Notes on an article by Niels Åkerstrøm Andersen and Paul Stenner

“In diverging from the classical biological view of the immune system as the part of the organism that defends it against external attacks, Luhmann closely follows developments within biology itself. He orients towards a systems theoretical form of biology that arguably escapes the oft-criticised biological reductionism – of which Durkheim and Parsons stand accused – that would model sociology so problematically upon biology.”

Structural Coupling of Economy and Law

If a product comes with a warranty, a legal obligation enters. The structural coupling between economy and law changes things by adding the temporal dimension, which is the duration of the warranty. Without a warranty or a return option, an economic transaction is an event with no duration. It begins and ends in the same moment. The temporal dimension doesn’t come into play. In a “pure” economic transaction, only the factual dimension comes into play–not the temporal or social dimensions. An example of pure commercial transaction would prostitution.

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