Prosecutorial Discretion Research Paper Example

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This research paper addresses the nature of prosecutorial discretion in the United States, with a particular focus on the discretionary behavior of state-level prosecutors (as opposed to federal). After describing the two most prominent forms of discretionary decision-making by prosecutors – filing and plea bargaining – the paper addresses external institutions’ ability and willingness to constrain prosecutorial discretion and the role of the prosecutor’s office in enabling and shaping discretionary choices by individual employees. Lastly, the paper discusses the case-and offender-level characteristics that seem to influence prosecutorial decisions, and the risk that these considerations lead to discrimination and reinforce stereotypes of crimes, criminals, and victims.

Introduction

Among nations that formally subscribe to an adversarial model of the criminal process, the prosecutor has come to be regarded as the most powerful player in the criminal court. Interest in prosecutorial power is nowhere more prevalent than in the United States, a nation that has witnessed the explosion of its prison population at the same time as its crime rates have shrunk. The responsibility of the prosecutor for mediating between crime and punishment thus has inspired countless investigations of prosecutorial decision-making, including the factors that influence individual choices about the pursuit of criminal charges and the availability of structural constraints to limit those choices in furtherance of equalized treatment of similarly situated offenders.

The Source And Nature Of Prosecutorial Discretion

As members of the executive branch of government, prosecutors enforce criminal laws by initiating and pursuing criminal cases against alleged violators. This enforcement duty is not a mandate, though; in most jurisdictions for most crimes, prosecutors have discretion to decide which alleged offenders merit prosecution – and ultimately punishment – by the state. Beyond simply initiating a case against a suspect, prosecutors have the authority to decide how many charges to file for a given episode or transaction, and whether those charges should be felonies (subjecting the offender to more than 1 year incarceration), misdemeanors (subjecting the offender to no more than 1 year incarceration), or merely infractions (subjecting the offender to monetary penalties but no incarceration). For those suspects deemed not worthy of prosecution, the prosecutor has three options: decline to file altogether, pursue the crime as a probation or parole violation if the offender was already subject to probation or parole, or divert the offender into some form of rehabilitation program. (Rarely do prosecutors affirmatively declare a suspect innocent; they simply abstain from prosecuting those cases that seem unmeritorious.) This initial filing decision forms the essence of what is meant by prosecutorial discretion.

In some civil law jurisdictions, prosecutors have no such discretion; once they conclude that a reasonable amount of evidence exists to support the charges, they must initiate a criminal case. (In these nations, undesired consequences of overly broad laws are meant to be handled by code amendments rather than by selective charging strategies.) Whether prosecutors in compulsory jurisdictions vigorously pursue all the cases they file is another matter, however. They might allow a weak case to lapse or fail to diligently conduct further investigation, thereby forcing the court to dismiss the case at some later date. Given these tendencies, even jurisdictions that formally subscribe to compulsory prosecution manifest variations in prosecutorial decision-making (Levine and Feeley 2001: 12227–8 (and cites therein)).

In discretionary jurisdictions, filing is not the only form of discretionary decision-making by prosecutors. Prosecutors also exercise significant discretion when making a plea bargain offer to a defendant, a process that involves asking the defendant to waive his right to trial, plead guilty to certain charges in the indictment, and in return receive a reduced punishment. The prosecutor’s discretionary choice at the plea offer stage is twofold: she must first decide what sort of punishment reduction is appropriate for the defendant in light of the facts, the defendant’s background, and other relevant circumstances, and secondly, she must decide which of the filed charges the defendant must admit in order to receive this reduced sentence. (The defendant can accept the deal, decline the prosecutor’s offer, or make a counteroffer, which the prosecutor may then accept, decline, or counter, pursuant to her discretion.)

In both the filing and plea offer contexts, prosecutors tend to be guided by instrumental objectives. They determine how much the case is “worth” in terms of penalty and then file charges (or make plea offers) to achieve that result. The penal codes of most jurisdictions offer a wide menu of options for prosecutors to choose from, because a single behavior can be characterized as any number of different crimes, each of which carries its own set of penalties, and the prosecutor is not legally obligated to choose either the least or the most serious alternative. For that reason, the prosecutor deciding whether and how to charge a case, or whether and how much to deal a case, pays as much attention to his intuitions about the “right” outcome for the defendant as to the provisions of the substantive criminal law. The relationship between justice and the “right” outcome is not always clear or consistent; the two might be in tension with each other, or justice might be viewed as an integral component of the “right” result.

Given the extraordinary ability of the prosecutor to shape the outcome of a criminal case through his discretionary decisions, one naturally wonders about the ability of other criminal justice institutions to constrain this power. That is the subject of the next section of this research paper.

External Mechanisms That Influence Prosecutorial Discretion

This section offers a quick assessment of the external sources of regulation on prosecutorial discretion – legislatures, judges, juries, state bar authorities, and voters. As the literature has documented, these outside institutions are remarkably ill-equipped or unwilling to constrain prosecutorial discretion in state criminal justice systems. Formal legal controls over the institution of prosecution are relatively weak, and voters are able to exert only muted control over prosecutors due to information deficits and the relative absence of contested elections.

The first place to look for regulations on prosecutorial behavior is the criminal code, crafted by the state legislature. By defining crimes narrowly and setting penalties at modest levels, legislators can confine the discretion of prosecutors in the jurisdiction. When it comes to criminal regulatory approaches in the United States, though, parsimony does not flourish. Voters expect prosecutors to take the lead in addressing crime, and they expect legislators to give them the legal tools to do the job. Legislatures do exactly that. Over time they tend to multiply – not reduce – the legal tools available to prosecutors, amending criminal codes to cover more behavior, to increase the range of punishments that apply to criminal behavior, and to intensify the overlap between criminal code provisions (Stuntz 2001). Legislatures thus augment the discretionary authority of prosecutors at both the filing and plea offer stages by providing them with a dizzying array of choices and few requirements.

Though legislators do not regulate prosecutorial discretion through the terms of the substantive criminal law, they might motivate or restrict prosecutors through a combination of carrots and sticks, such as grant programs or direct instructions for how to perform their work. Such techniques gain popularity with legislatures who want to appear responsive to victim complaints and press reports of under-prosecution for certain crimes, as these programs tend to raise the priority status of the targeted crimes vis-a`-vis others that occur in the community. For example, the state budget might include funding for local offices to hire extra prosecutors to pursue designated crimes that offices might otherwise choose to ignore. Alternatively, legislatures might instruct local prosecutors to file more charges for specified crimes or to reduce the percentage of dismissals in previously filed cases that allege certain law violations.

While these legislative directives have the potential to be meaningful regulatory devices, their current impact is small due to their exceptional and tentative nature. Budgetary line items that direct prosecutors to devote resources to one type of crime rather than another are unusual, and they represent only a small fraction of an office’s annual budget. Most of the money that arrives in the local prosecutor’s office each year does not have strings attached, meaning the chief prosecutor can allocate his funds to meet locally identified priorities without having to explain his decisions to state lawmakers (for a discussion of how local priorities produce variation among federal prosecution offices, see O’Neill 2004:1486). As for the crime-specific “no drop” laws, which purport to be hard and fast rules limiting prosecutorial discretion, they leave plenty of room for the individual prosecutor to exercise judgment and to manage her caseload. For example, before filing a “no drop” case the individual prosecutor must still determine whether there is a minimum factual basis for the charge, and she is likely to have little trouble fitting cases into exceptions when she wants to reduce or dismiss a case that has already been filed.

Like the legislature, the judiciary has assumed a muted role in monitoring and controlling the discretion of criminal prosecutors. When judges are asked to override prosecutor choices about the selection or pretrial disposition of charges, they apply separation of powers doctrine and conclude that such decisions are executive choices. Applying the formal law of due process, the judge considers only whether the charges have some minimal factual support in the available evidence. Courts will, however, overturn a prosecutorial decision that is based on race, gender, or some other prohibited ground (Oyler v. Boyles 1962).

Judges do have the statutory authority to accept or reject plea agreements that the parties present to them, and judges concerned about inappropriate deals will question the advocates about their terms. But these judicial powers operate within a system of mass justice where institutional competencies differ and power arrangements shift over time. With respect to competency, the parties typically know more than the judge about both the alleged crime and the defendant’s background; for that reason, it is rare for the judge to override a plea deal that both parties support. On the power front, the introduction of mandatory minimum sentence requirements and sentencing guideline schemes has led to a decrease in judicial authority relative to prosecutorial authority (Miethe 1987; Engen and Steen 2000). Legislative innovations intended to thwart judicial leniency thus have merely shifted the critical decision point and the power balance in the criminal court, as prosecutorial charge determinations have become squarely determinative of sentence outcomes in a wide range of cases. This has led scholars to describe the current framework as an “administrative” rather than adjudicatory, criminal justice system (Lynch 1998).

While judges have lost some of their ability to rein in prosecutors, juries have retained their theoretical role as a check on prosecutorial discretion through their power to nullify. Jury nullification denotes the power of the jury to return not guilty verdicts despite strong evidentiary support for the crimes charged. By exercising this power, juries can signal to prosecutors that the charges brought against a particular defendant ought not to have been filed or that the criminal code provision is at odds with community values or priorities. But the jury’s nullification power is rarely more than theoretical in light of courthouse realities. Fewer than 5 % of criminal cases are heard by juries (most are plea bargained out of the system at the pretrial stage), and most judges do not allow juries to learn of their power to nullify – either through court authored jury instructions or attorney argument. As a result, few criminal defendants can count on being saved from prosecutorial excess by a jury with a conscience (or an ax to grind).

Prosecutors as attorneys are also subject to the rules of the legal profession, which instructs and regulates its own members pursuant to disciplinary codes and bar tribunals. But state bar organizations have brought relatively few disciplinary proceedings against prosecutors, and those that have been brought tend to result in only light punishment. Moreover, the courts have routinely found that prosecutors are entitled to absolute immunity from civil damages for all professional decisions made in the course of prosecuting a case, so a criminal defendant who challenges the prosecutor’s discretionary filing or bargaining strategy in his case would face an absolute bar to recovery in civil court.

In the absence of robust standards stemming from the legislature, judiciary, jury, or state bar, perhaps state-level elections keep the chief prosecutor’s discretion within acceptable boundaries. In contrast to the 93 appointed chief prosecutors who populate the federal criminal justice system (aka United States Attorneys), the more than 2,300 chief prosecutors in the much higher-volume state systems must run for office. Many chief prosecutors are elected on a countywide or citywide basis and must live in the community that elects them. (Occasionally a chief prosecutor is appointed by the governor to fill a recently vacated post in between electoral periods.) For that reason, the pressures of the ballot might subject the elected prosecutor to the wishes of the population she serves or at least force her to pay attention to those wishes when exercising her discretion.

Yet elections of prosecutors deliver less than they promise by way of accountability due to incumbency advantage and the content of electoral discourse. Incumbents enjoy reelection rates of 95 % or higher in most jurisdictions, and about 85 % of them run unopposed (Wright 2009). Aside from the benefit that arises from their position, incumbents in contested prosecutorial elections rarely encounter meaningful public scrutiny of their policies or priorities for the office. Instead, elections turn on generic claims about “competence,” familiar but unhelpful measures (like the “conviction rate” of the office), and – most common of all – claims about high-profile cases (both successes and failures). Election rhetoric does not highlight ideological or policy differences between candidates nor does it describe the nature of discretionary decision-making by either the chief or her assistants.

Taken together, these external institutions are sure to have some cumulative regulatory effects on prosecutorial discretion. They do part of the work to ensure that prosecutor choices comply with the law and with current public priorities. They do not, however, explain why prosecutors make the decisions they make in individual cases. To fully understand prosecutorial discretion, one should consider practices that originate from inside the prosecutor’s office as well.

Internal Mechanisms That Influence Prosecutorial Discretion

In light of the gaps left by external regulatory approaches, what are the prospects for internal regulation of prosecutorial discretion? Some legal commentators considering the sources of internal regulation have focused on the value of one’s internal moral compass, concluding that a prosecutor’s professional conscience keeps her individually committed to the ideal of responsible behavior in the exercise of her discretion (Cassidy 2006). But this portrayal of the prosecutor as a self-determined island is vastly incomplete. For one thing, the professionals who work together routinely in a criminal courtroom – the prosecutor, the defense attorney, the judge, the clerks, and so forth – influence one another in predictable ways. Some prominent scholarship has explored the impact of these “working groups” of courtroom actors, noting that the members of such groups tend to prioritize the maintenance of their relationships over individual goals and that these relationships affect prosecutorial choices in given cases (Nardulli et al. 1988).

Working groups within the courtroom are not the only relevant group in a prosecutor’s world: the home office can also significantly shape a prosecutor’s understanding of the justice system, public priorities, and even what qualifies as a crime. Sometimes this office’s influence is explicit, as when the chief prosecutor announces office policies that restrict the discretion individual line prosecutors may exercise for certain crimes (like the imposition of compulsory prosecution for crimes involving firearms) or at certain times (like the imposition of limits on how much plea bargaining will be tolerated after filing). The leadership of an office can also create monitoring and enforcement mechanisms within the office to learn about departures from the announced policies and to discourage them. These features are commonplace in federal prosecution offices (called United States Attorneys’ Offices), which are all organized under the US Department of Justice. Such formal bureaucratic controls are also a routine part of the prosecutorial services in many other countries (Wright and Miller 2010; Johnson 1998).

Beyond the explicit instructions or direct oversight received from the elected prosecutor or her chief assistant, line prosecutors take their cues from the unarticulated values at work in the office. These often unspoken principles can affect prosecutorial discretion in a variety of ways. For example, they might address the best treatment of a particular type of offense or offender, or they might involve general attitudes about the importance of consistency in handling all types of cases. Like the official policies announced by the chief, these unofficial, word-of-mouth standards have the capacity to both guide and constrain discretionary choices by prosecutors in their individual caseloads.

Finally, structural aspects of the home office may guide prosecutorial decision-making. Various organizational features of the prosecutor’s office – size of the workforce, status hierarchies, hiring strategies, job assignments, promotion ladders, physical arrangement of offices, access to the boss, the existence of vertical prosecution units, and the like – structure the professional identities and work lives of the attorneys in the office (see Levine and Wright 2012). These aspects of the social architecture inside the office combine with aspects of the office’s external professional environment – such as the proximity to the courthouse, relationships with the defense bar, relationships with the judiciary, relationships with local law enforcement, stability of courtroom personnel, and docket size and diversity (Utz 1978; Jacoby 1977) – to produce the overall institutional environment in which the individual prosecutor works. While the prosecutor may not explicitly recognize environmental factors as controlling when he is considering whether to file charges or to offer a plea deal, their influence is nonetheless observable. For example, scholars have found that offices display certain overall tendencies that distinguish them from other offices in terms of willingness to bargain with the defense bar or to challenge the local bench. Moreover, in most jurisdictions and with respect to most crimes, local law enforcement officers retain significant discretion about which cases to forward to the prosecutor’s office in the first place, thereby affecting the diet of potential cases that prosecutors even see. Hence, prosecutorial willingness and ability to press forward certain kinds of cases may depend significantly on law enforcement willingness and ability to properly investigate those cases.

In sum, while external institutions have yielded a lot of ground to prosecutors in the battle over the need for limits on filing and plea strategies, forces inside the prosecutor’s own office – explicit policies, behavioral norms, and structural arrangements – tend to keep most individual prosecutors within reasonable (or at least fairly predictable) bounds when it comes to exercising their individual case management choices. Of course, if an office’s internal constraints are inadequate, misguided, or corrupt, as when an office fails to properly train its employees regarding their Constitutional disclosure obligations, uses of discretion become less predictable and more risky in terms of legality.

The final section of this research paper moves away from the structural perspective to address case-and offender-level characteristics that seem to influence prosecutorial decisions. It also considers scholarly treatment of the risks that such decisions will discriminate against, or further stereotypes about, crimes, offenders, and victims.

Case And Offender Traits That Influence Prosecutorial Discretion

Prosecutors in the USA are under no legal imperative to achieve (or to prioritize) uniformity in case processing; unless internal office policy demands otherwise, they need not worry about trading consistency for individualized treatment of suspects accused of similar crimes (Remington 1979; cf. Johnson 1998, discussing the consistency imperative in Japan). The backstop is the Equal Protection Clause of the Constitution, which prohibits filing or plea strategies based on the offender’s membership in a protected class (Oyler v. Boyles 1962). Because the Constitution can tolerate variation that falls short of this kind of intentional discrimination (and because intentional discrimination is exceptionally difficult to prove), empirical work on prosecutorial discretion has centered on identifying the components of individualized treatment, with a normative inquiry into whether certain factors are legally appropriate to include in the filing or punishment calculus. Accordingly, work in this area tends to compare the impact of legally relevant variables with that of legally irrelevant variables on prosecutorial decision-making and case outcomes (see, e.g., Adams and Cutshall 1987; Williams et al. 2007).

Most studies, whether based on qualitative or quantitative data, find that legally relevant variables strongly correlate with both filing decisions and case outcomes. For example, prosecutors assert (and independent review of case files demonstrates) that offenders with significant criminal histories are more likely to suffer adverse consequences in the criminal justice system at every level – to have charges filed against them, to have serious charges filed against them, to have higher bail amounts requested and granted, to be convicted of at least one crime charged in the indictment, and to receive sentences involving incarceration. There is also a positive correlation between these outcomes and evidence strength or crime seriousness (judged by witness number and credibility, level of injury, quantity of drugs, amount of dollar loss, availability of forensic reports, and the like).

For many scholars of prosecutorial discretion, the influence of these factors is expected and defensible; after all, the legally relevant components of a crime and of the offender’s background should affect professionals’ judgment about the need for criminal justice intervention, particularly when resources are scarce and trial outcomes are uncertain. For others, facially neutral charging and case-handling strategies mask stereotypes about crimes, criminals, and victims that lead criminal justice officials “to focus on some offenses and offenders more than others” (Dawson 2004:106), which in turn causes them to reproduce and reinforce societal biases in the courtroom (Frohmann 1997; see also Spears and Spohn 1997). It may also cause them to underenforce certain crimes, as they implicitly read into the statute extra requirements (elements that the legislature did not explicitly include) in order to conserve enforcement resources or to avoid presenting juries with ambiguous cases (McPhail and Jenness 2005; Levine 2006).

Likewise, the empirical salience of legally irrelevant, or “extralegal,” factors in determining case outcomes gives rise to concerns about the exercise of official discretion in the absence of meaningful external controls. Criminal justice scholars have long questioned whether prosecutors exercise their discretion – file charges, request high bail amounts, recommend longer sentences – in ways that disadvantage men, people of color, the poor, nontraditional victims, and other minorities. For example, numerous studies have shown that race is a significant variable in cases involving interpersonal violence (see, e.g., Walsh 1987), although sometimes it is the race of the victim, rather than the race of the defendant, that produces a statistically significant effect (see, e.g., Kingsworth et al. 2002: 562). Findings regarding the impact of offender race on prosecutorial treatment of nonviolent offenses have been more mixed (cf. Engen et al. 1999 with Steffensmeier and Demuth 2000).

Geographic variation within districts that are all subject to the same formal law has also come under scrutiny, with scholars asking whether offenders receive different treatment based on which office files the case against them. Intra-district variation is troubling but not unexpected, given the chief prosecutor’s ties to his or her electoral community and the dimensions on which communities vary. Scholars have found a correlation between community poverty levels, community political conservatism, and prosecutorial dismissals (Franklin 2010) and between community demographics and prosecutorial willingness to file charges with mandatory minimum sentences (Ulmer et al. 2007). Geography and defendant characteristics also may not be mutually exclusive influences when it comes to the filing decision. For example, Franklin found that prosecutors in different counties did not use traits like age, race, sex, and prior criminal history in the same way; rather, “the degree to which these factors influenced prosecutorial decision-making (in the initial filing decision) varied depending on the jurisdiction” (Franklin 2010: 697).

The problems with treating similarly situated defendants in a disparate manner become particularly acute in the death penalty context. There has been quite a bit of scholarly interest in the prosecutor’s decision to file a murder case as a capital murder case, given that most state statutes authorize capital murder prosecutions in a variety of settings but do not require even the most heinous murders to be pursued in this fashion. For example, scholars have documented significant disparities between counties located in the same state, applying the same formal law, when it comes to their rate of death penalty filings per “death eligible” murder case (American Bar Association 2006), leading to policy calls for more transparency and consistency in the process in order to assure that one’s chances of ending up on death row do not arbitrarily depend on county boundaries. Others have found that, irrespective of jurisdiction, the race of the victim has a strong influence on whether a homicide is pursued as capital murder as opposed to something less (Williams et al. 2007). Because those who kill whites are statistically more likely to be prosecuted for capital murder than those who kill African-Americans, prosecutors have been accused of unfairly devaluing the lives of minorities relative to whites. So far, courts have refused to consider these sorts of statistical disparities as legally actionable under the Equal Protection Clause, given the absence of proof of intent to discriminate.

Conclusion

The discretionary decision to charge a suspect with a crime or to offer a defendant a deal prior to the start of trial results from a complex network of factors, some explicit, some implicit in the mind of the prosecutor. The relative absence of external controls on the prosecutor’s decision-making process has led to calls for more oversight and accountability, particularly in light of the decrease in judicial authority that has resulted from sentencing guideline schemes and mandatory minimum requirements. While a certain amount of variation is perhaps inevitable given disparities in local needs, resources, priorities, and personalities, institutional mechanisms are necessary to ensure that prosecutorial choices are thoughtfully made, wisely and consistently implemented, and subject to evaluation. Without such efforts, the power of the prosecutor is likely to grow stronger, fed by the public’s fear about rising crime rates, politicians’ inclination to expand rather than contract the web of criminal statutes, and courts’ reluctance to impose doctrinal limits on prosecutorial behavior that falls short of intentional discrimination.

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