CHAPTER 6 CHARGING DECISIONS

• Jurisdiction: United States

Chapter 6 CHARGING DECISIONS

§ 6.01 THE SCOPE AND EXERCISE OF PROSECUTORIAL DISCRETION¹

[A] The Scope of Discretion

"The term 'prosecutorial discretion' refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring. . . ."² The matter could hardly be put more plainly, but bears emphasis: At least following an arrest,³ the decision whether to bring a criminal case lies almost exclusively in the prosecutor's hands. In the words of the Supreme Court, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."⁴

As noted in the descriptions of "prosecutorial discretion" quoted above, the discretion involved has two aspects. There is the power to bring charges, and there is the power to decide not to bring charges. Regarding the latter authority, the prosecutor truly has "virtually unlimited discretion not to proceed with a case, for any reason that she deems appropriate."⁵ In most circumstances there are no rules requiring a prosecutor to bring charges and, perhaps more importantly, a prosecutor's decision not to bring charges is usually final and not subject to reversal by anyone outside of the prosecutor's office.⁶

A prosecutor's discretion to go forward with criminal charges, in contrast, is subject to meaningful, though limited, constraints. First, unlike the decision not to bring charges, substantive rules control when charges may be brought. Formal charges may be initiated only if the prosecutor can establish that there is probable cause to believe the defendant committed the crime.⁷ Moreover, even in the presence of probable cause, the prosecutor is not permitted to bring charges for such improper reasons as racial bias or political persecution,⁸ nor may a prosecutor bring charges vindictively, for example, because a defendant successfully appealed a conviction.⁹ Second, unlike the decision not to charge, a prosecutor's decision to bring charges is subject to limited outside review. Absent a waiver by an accused, a formal felony charge requires an indictment issued by a grand jury¹⁰ or an information approved by a judge following a preliminary hearing.¹¹

While these limitations make it harder for a prosecutor to bring criminal charges against a random person on the street (harder than it is to not bring charges against a person the police have arrested), in practice these requirements do not present significant barriers to prosecutors in cases they are likely to wish to pursue.¹²

Prosecutorial discretion covers not only the decision whether to charge, but also the decision of what to charge. Most criminal codes "contain overlapping statutes bearing different penalties for the same actions, and a particular criminal scheme may include a number of acts, some of which may be independently chargeable as separate crimes."¹³ The prosecutor again has virtually complete discretion to choose among the possible crimes for which probable cause exists, and an expansion, at least at the federal level, in the number of crimes carrying mandatory minimum sentences¹⁴ has increased this decision's importance.

Because the prosecutor generally has the discretion both to bring charges and not to bring charges, almost every prosecution, as well as almost every "declination" (a decision by the prosecutor not to bring charges in a case referred to her), constitutes an exercise of discretion, and that discretion is no less important in practice than it appears in theory. For example, for individuals arrested on felony charges in 2000 in the seventy-five largest urban counties (and whose cases were resolved within one year), prosecutors dismissed charges completely in twenty-six percent of the cases, diverted or deferred prosecution in another nine percent, and accepted misdemeanor guilty pleas in an additional twelve percent.¹⁵ Similarly, in 2002 federal prosecutors brought charges in District Court in only sixty-two percent of the cases referred to them, dismissing the majority of the remainder, while referring others to U.S. magistrates for misdemeanor prosecution.¹⁶

[B] The Exercise of Prosecutorial Discretion

[1] Factors Influencing Charging Decisions¹⁷

Prosecutors choose whether to bring charges for a variety of reasons. To begin with, as a result of legislative tendencies to enact broad criminal provisions and not to eliminate crimes enacted with the concerns and priorities of earlier eras, prosecutors are as unlikely to prosecute every criminal violation as police are to issue a ticket for every technical violation of jaywalking or speeding statutes. Furthermore, the reality of finite resources require prosecutors in most jurisdictions not to prosecute some of the cases that are referred to them.

In addition to these general concerns, prosecution decisions are driven by a variety of case-specific factors. Of course, a prosecutor will receive cases in which he concludes the evidence is not legally sufficient to support a charge, which should lead to a decision not to prosecute, although the complaining witness and/or the police officers involved may be dissatisfied.

Beyond that straightforward situation, the American Bar Association standards for prosecutors offer seven factors to be considered in the individual case: (i) whether the prosecutor harbors a reasonable doubt regarding whether the accused is in fact guilty;¹⁸ (ii) the harm caused by the offense; (iii) whether the authorized punishment is proportionate to the offender and his actual conduct; (iv) possible improper motives of the complaining witness; (v) the reluctance of a witness to testify; (vi) the offender's assistance in prosecuting others; and (vii) prosecution of the offender in other jurisdictions.¹⁹ A realistic accounting of the considerations many prosecutors use in charging decisions would also include practical concerns about the strength of the case and the potential difficulties of proving guilt at trial (even assuming that the prosecutor has no reasonable doubt and that the evidence is legally sufficient). Finally many prosecutors would also consider whether other information about the offender, apart from the conduct that may be the subject of the charge, suggests that prosecution "will provide important collateral benefits, such as the incapacitation of a repeat violent offender."²⁰

More controversially, critics charge that prosecutors will bring charges greater than those they genuinely believe are necessary to vindicate society's interest in the case in order to pressure the defendant into pleading guilty and to give the prosecutor "bargaining room" in plea negotiations.²¹

[2] Channeling the Exercise of Discretion

As noted above, prosecution offices enjoy largely untrammeled discretion in deciding whether to bring charges. A separate aspect of prosecutorial discretion is the control over individual cases that the head prosecutor exercises in his office. After all, many large prosecution offices have more than 100 assistant prosecutors, each with his own case load.²²

Many large prosecution offices have written policies to guide individual prosecutors' charging decisions. While such policies may help ensure that individual prosecutors within an office are considering the same factors, such policies tend to be sufficiently general to leave the individual prosecutor with considerable discretion. For example, the United States Attorney's Manual directs federal prosecutors to bring charges in any case where the prosecutor believes a person has committed a federal offense and that a conviction is probable, unless "[n]o substantial federal interest would be served by prosecution; [t]he person is subject to effective prosecution in another jurisdiction; or [t]here exists an adequate non-criminal alternative to prosecution."²³ While this instruction surely provides some guidance to prosecutors (and defense attorneys seeking to persuade prosecutors not to bring charges), the first and third factors leave a broad scope for judgment by the individual prosecutor — a circumstance highlighted more than limited by the multiple factors the Manual sets out to be weighed in each of the three judgments listed above, including seven factors with eight comments to be considered in judging the presence of a "substantial federal interest."²⁴

Similar office guidelines may govern the decision of what charge to bring after the decision to prosecute has been reached. Again, the federal policy provides a useful example of the (limited) extent to which such policies actually control the discretion of individual prosecutors. Federal prosecutors must "charge . . . the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction."²⁵ Yet, prosecutors are instructed, application of this direction "is not incompatible with selecting charges . . . on the basis of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the Federal criminal code, and maximize the impact of Federal resources on crime."²⁶

Many prosecutors' offices employ systems of internal review of charging decisions — for example, requiring declination decisions or all charging decisions to be approved by a bureau chief — to help ensure consistency in office policy.

§ 6.02 PROSECUTORIAL DISCRETION: THE POLICY DEBATE²⁷

[A] Criticisms of Prosecutorial Discretion

Many scholars have been strongly critical of the extent of prosecutorial discretion.²⁸ They raise concerns related to both due process and equal protection.

The due process oriented arguments emphasize the absence of rules governing charging decisions, the dearth...