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.

Inclusion & Exclusion

The excluded is always included by an observer. In other words, the observer includes the excluded as the excluded. This is a two-sided form, which means the boundary separating the two sides must be crossable. An observer can only exclude something that could potentially be included. There are no laws prohibiting a person from flapping their arms and flying into the sky like Icarus because such a law could not be broken—i.e., the line separating legal and illegal could not be crossed.

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