Prosecutorial Discretion Essay

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There is no more powerful person in most courthouses than the prosecutor, with largely unfettered discretion over critical life, death, and freedom decisions, and precious little guidance and oversight for the exercise of that discretion. The immense power, that almost boundless discretion, can be wielded for good or ill.

In millions of cases every year, prosecutors decide how criminal investigations should proceed, which suspects to charge, which charges to bring, when to bring the charges, whether to convene a grand jury, what bail and release conditions to seek, which witnesses to put on the stand, which exhibits to present to the judge or  jury,  which  codefendants get a favorable “deal” in exchange for that cooperation, which codefendants are granted immunity for cooperation, what plea deals to extend and which to reject, which charges and which complaints will be dismissed, what amount of jail or prison time is “enough,” which defendants will be charged with death penalty-eligible offenses, which dismissed charges will be refilled, which appeals will be brought and which foregone, and so on. These are weighty decisions, every day, in most every case, and although these decisions appear to be guided by external  rules and policies promulgated by others, these decisions are guided more often and more deeply by each prosecutor’s personal moral/ethical compass than by any external rules and policies.

As  with  many  professions, attorneys  are guided by ethics rules adopted by the courts in the various jurisdictions. Prosecutors are singled out for special rules and obligations that other attorneys are not required to obey. Rule 3.8 of the  American  Bar Association  (ABA) Model Rules of Professional Conduct requires that all prosecutors bring only those cases and charges supported by probable cause, ensure the criminal defendant knows of his or her right to competent defense counsel, disclose all inculpating and exculpating evidence in the prosecutor’s possession or control, and refrain from public statements that may heighten public condemnation of the accused. No other attorney category has such limits on discretion.

The ABA standards for prosecutors label prosecutors as ministers of justice and quasi-judicial officers, whose obligation is not simply to win at all costs but to do justice in every case. And the predominant national association of prosecutors has crafted an even more extensive set of standards guiding the exercise of prosecutorial discretion and setting standards for prosecution staffing, media outreach, the proper  considerations prosecutors should bear in mind when making critical decisions about charging and resolving criminal cases, and much more.

Prosecutorial Discretion in Making Charging Decisions

Police officers exercise what  might  be termed “street justice” on a daily basis as officers decide which offenders to cite, refer for formal charges, merely warn, or allow to go on their way. Those street justice decisions involve considerable discretion. Similarly, prosecutors engage in a case-by-case process to decide which cases to charge, which charges to include, and which offenders will not be charged at all. Those decisions involve a great deal of discretion and must be based only on permissible considerations.

Permissible  considerations  include  strength of the evidence, doubt as to the accused’s guilt, sufficiency of admissible evidence to prove guilt, whether  other/noncriminal remedies are available to the victim, whether  diversion or referral for rehabilitation or treatment programming would  be wiser than  charging,  how  similarly situated  offenders  have been charged,  attitude and mental  state of the accused, whether  the alleged crime was a one-time aberration for that offender, whether the costs of prosecution outweigh the benefits, the deterrent value of bringing the charge, the nature of the offense, the nature of the offender to the extent that nature is relevant to criminal culpability, the willingness of the accused to cooperate with law enforcement or prosecution in other cases, the impact of the crime on the community and victim, any recommendations of law enforcement, the accused’s relative level of criminal culpability, and any aggravating or mitigating circumstances.

Conversely, impermissible considerations include the prosecutor’s or the prosecution office’s conviction rates, personal advantages or benefits for the prosecutor or prosecution office, political advantage, characteristics of the accused that have been the basis of invidious discrimination (such as race, religious affiliation, gender, sexual preference), and the impact of any asset forfeiture resulting from the possible prosecution that may financially benefit the prosecution office.

Clearly, no prosecutor should charge any defendant with any crime if that prosecutor does not believe there is both probable cause and a substantial probability of success at trial. Just as clearly, if the prosecutor, after charging, determines that the case or any charge has weakened beneath that level of substantial probability of success at trial, the prosecutor is obligated to dismiss that case or charge. No prosecutor should engage in improper leveraging by charging an unwinnable but more serious crime to coerce the defendant into pleading guilty to a lesser offense.

Prosecutorial Discretion in Disposing of and Resolving Cases and Charges

Case disposition involves myriad considerations and options. The prosecutor, for example, could dismiss the entire case, or grant immunity to certain codefendants in exchange  for cooperation against others, or divert the case without formal adjudication, or enter a plea agreement, or take it to trial. Each of those options must be grounded on prosecutorial discretion that is beyond reproach. The prosecutor cannot ethically make case disposition decisions to “get even” or to win a few extra votes in the next election. However, in disposing of a case or negotiating a plea agreement, the prosecutor may ethically consider all the same factors listed above as relevant to making charging decisions.

Discriminatory Impact Versus Discriminatory Intent

Prison population, arrests,  and convictions  all have a disproportionate impact on communities of color. A disproportionate percent of persons exonerated by the Innocence Project have been persons of color. When discriminatory impact is a statistical artifact, there may not have been any improper case charging or disposition by prosecutors. When prosecutors act with discriminatory intent, however, due process and equal protection cannot survive. Prosecutors and their staffs must be eternally vigilant to ensure race neutrality in all facets of prosecutorial decision making, and to ensure that law enforcement officers and agencies within their jurisdictions likewise respect race neutrality in police frisk, arrest, release, search, citation, and referral policies.

Prosecutorial Discretion and Sanctions for Prosecutorial Misconduct

Many commentators have noted that prosecutors rarely suffer personal consequences for their misdeeds in office, such as disbarments or lawsuits for money damages. Immunity protects prosecutors from most lawsuits arising out of their exercise of prosecutorial discretion. Sanctions against prosecutors’ licenses to practice law are unusual, although such sanctions have become more common since 2000. It is not external rules or policies or standards that truly guide prosecutorial discretion. Rather, prosecutors should possess an unfailing internal moral/ethical compass. Because so much of prosecutorial discretion is exercised in private, and because immunity protects prosecutors when they publicly err, society’s last line of defense is to elect good and ethical people to be good and ethical prosecutors.


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  11. National College of District Attorneys. Doing Justice: A Prosecutor’s Guide to Ethics and Civil Liability. 2d ed. Cary, NC: National Center for Prosecution Ethics, 2007.
  12. National District Attorneys Association. “National Prosecution Standards,” 3rd ed. 2009. (Accessed April 2013).
  13. Neyfakh, Leon. “Can Juries Tame Prosecutors Gone Wild?” Boston Globe (February 3, 2013). (Accessed April 2013).
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  15. Smith, Abbe. “Can You Be a Good Person and a Good Prosecutor?” Georgetown Journal of Legal Ethics, v.14 (2000).

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