Life or Death Decisions: Prosecutorial Power vs. Equality of Justice

AuthorSusan L. Caulfield
Published date01 December 1989
Date01 December 1989
Subject MatterArticles
Life or Death Decisions:
Prosecutorial Power vs. Equality of Justice
Susan L. Caulfield
This paper addresses constitutional safeguards as they
apply to capital punishment; specifically, the lack of such
safeguards regarding the use of prosecutorial discretion.
In particular, the use of discretion at the charging stage is
examined. Such analysis shows clear room for misuse of
discretion and seeks to find methods by which such
discretion can be restrained. Lastly, the existence of such
misuse, and the implications for arbitrary and
discriminatory application of the death sentence, raise
issues of state priorities. Specifically, what is at issue is
equality of justice having to compete with bureaucratic
efficiency, and the implications of such competition for
the justice system.
Supreme Court told us, in Furman v. Georgia, that thedeath penalty
unconstitutional as currently practiced, that practice being arbitrary and
capricious. The 1976 cases (Gregg v. Georgia, Profitt v. Florida, Jurek v.
Texas) established new guidelines by which death would again be a
constitutionally valid sanction.’ The issue being addressed here is whether
the procedures outlined in the 1976 cases, and cases that have followed,
constit~.tesufficientsafeguards to allow thecuffentuseof capitalpunishment
whether those cases merely examined the&dquo;tip of the iceberg of discretion&dquo;
and that, therefore, further safeguards are necessary. Specifically, the
question will be raised concerning prosecutorial discretion in the charging
decision. This charging decision includes, of course, the use of plea
bargaining which, in the majority of criminal cases, can be the determinative
factorregarding the charge. This analysis is geared toward an understanding
of the prosecutor’s decision-making function and whether, in light of
Supreme Court opinions and social science data, that decision should be
subject to more stringent procedural safeguards in death-eligible cases.
Given that stringent safeguards are not in existence and given the primacy
afforded the interests of the state, the notion of equality of justice will be

addressed along with the desirability of placing justice in competition with
bureaucratic efficiency.
Prosecutorial Power and Discretion
In looking for standards regarding prosecutorial decision-making, two
primary sources were found, the American Bar Association’s (ABA) report
standards for criminal justice (1980) and the National District Attorneys
Association’s (NDAA)reportonprosecution standards (1977). The following
list of factors that may be taken into consideration by prosecutors is that of
the NDAA. This list covers the same factors as the ABA, plus some
additional factors. The factors which can be considered in the exercise of
prosecutorial discretion are as follows:
1. The nature of the offense;
2. The characteristics of the offender;
3. The age of the offender;
4. The interests of the offender;
5. Possible improper motives of a victim or witnes~;
6. A
history of non-enforcement of a statute;
7. Likelihood of prosecution by another criminal justice
8~ Aid to other prosecuting goals through non-prosecution;
9. Possible deterrent values of prosecution;
10. Undue hardship caused to the accused;
11. Excessive cost of prosecution in relation tv the seriousness of
the offense;
12. The probability of conviction;
13. Recommendation of the involved law enforcement agency;
14. Any mitigating circumstances. (1977, p. 131)
These guidelines, while seemingly defined, are basically left to the
interpretation of the individual prosecutor. In addition, they are so broad in
scope and application t’hat they are of little practical guidance. As will be
seen later in this paper, some of these factors (particularly the first two,
regar~ng the nature of the offense and the characteristics of the offender)
allow for arbitrary and capricious application. However, before examining
these factors and their various relationships to the imposition of the death
penalty, it will first be necessary to examine the power of the prosecutor.
According to Nissman and Hagan
(1982) the power of the prosecutors is

Although ultimate fact finding rests with jurors, it can
fairly be said that the power of the prosecutor to institute
criminal prosecution vests in him an authority in the
administration of criminal justice at least as sweeping as,
and perhaps greater than, the authority of the judge who
presides in criminal cases (p. 19; emphasis added).
This power is not only as potentially great as that of a judge but perhaps
it is even more powerful than a jury’s since the prosecutor plays such a large
role in deciding who and what is on trial. For example, in the case of co-
defendants in a first degree murder case, it is the prosecutor who is excluding
one defendant from
death penalty consideration if that defendant is willing
to give evidence for the state or if the prosecutor makes a decision based on
individual characteristics to charge differentially in the hopes of winning at
least one case. If both defendants played a role in the same murder, why
should one person, the prosecutor, have the power to make one eligible for
a death sentence and exclude the other from
eligibility? As noted in a 1970
project report: ‘~The character, quality and efficiency of the whole
system is shaped in great measure by the manner in which [the prosecutor]
exercises his broad discretionary powers&dquo; (p. 44). In a 1980 report, the ABA
clarifies this in somewhat more favorable terms. They claim that &dquo;the public
interest is best served and evenhanded justice best dispensed not by the
mechanical application of the ’letter of the law.’ but by a flexible and
individu alized application of its norms through the exercise of a prosec~ctor’s
thoughtful discretion&dquo; (p. 3.56; emphasis added).
would counter the above argument with suggestions that there are
processes built into the system to prevent misuse of discretion, such as the
grand jury’s review of indictments. However, the issue here is not that
prosecutors are misusing discretion by indicting people for first degree
murder when that would be the wrong charge. To the contrary, the issue here
is that prosecutors can make a conscious decision not to charge defendants
with a death penalty-eligible offense. While the decision not to charge with
a death penalty-eligible offense is not problematic, it becomes problematic
if evidence points to that decision being based on what would be termed
arbitrary and discriminatory criteria. A
determination of misused discretion
as applied to the charging decision is not likely to be made by the grand jury,
even given information that supports a charge of misuse. To the contrary, as
Campbell (1973) noted: &dquo;At its best. the grand jury today operates as a
sounding board for the predetermined conclusions of the prosecuting official&dquo;
(p. 178). While the history of the grand jury instructs us that one of its
functions is that of &dquo;the people’s watchdog,&dquo; that is, to seek out and disclose
governmental abuse or detect areas in need of legislative reform (Frankel and
Naftalis, 1977), it is difficult to regard this as true if the grand jury is, in fact,
simply a tool for the prosecution.

further example of the immense power of the prosecutor is reflected
in sentencing disparity. A concern of defendants, judges, and corrections
personnel, sentencing disparity has generally been viewed as a sentencing
problem, but it is apparent that &dquo;downgrading at adjudication not only is
closely related to sentencing differentials but is determinative of whatever
disparity exists in fixed sentence jurisdictions&dquo; (Newman, 1966, pp. 237-
238). In other words, the charging decisions that the prosecutor makes have
a profound effect on what occurs later in the process. If certain types of
people (~.g., whites, non-lower-class) are charged with lesser offenses, this
will have an impact on possible sentences and will result in sentencing
disparity. These observations serve as a clear indication of the effect of
prosecutorial decision-making. It is because of this immense power of the
prosecutor that questions must be raised regarding safeguards.
The prosecutor basically has unchecked discretion in relation to plea
bargaining and charge reduction. As noted by Nissman and Hagan (1982),
the prosecutor has sole discretion in charging decisions and only in the most
exceptional cases will these decisions be judicially reviewed2 As Gottfredson
and Gottfredson...

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