The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in detail with the multifaceted threat to justice and efficiency posed by regimes that place too much authority for calling cases in the hands of prosecutors. Using South Carolina's now-unique system of complete and exclusive prosecutorial docket control as a jumping off point, the article proceeds in three parts. Part I, provides the most comprehensive history of criminal court docketing practices yet assembled. Part II, the heart of the article, explores in detail the consequences of prosecutorial docket control for the nature and quality of criminal justice, paying particular attention to the ways in which prosecutorial control facilitates wrongful convictions. Finally, Part III examines some of the reasons why prosecutorial docket control has proven difficult to uproot in a number of states, along the way drawing some important lessons about the nature of legal roles, legal rules, and legal doctrine.
When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 AM. J. CRIM. L. 325