The Elected Servant: Limiting Judicial Overview of State Prosecutors' Nolle Prosequi Power to Corruption and Infringement on Defendants' Rights.

AuthorPatalano, Matthew

"The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances." (1)

  1. Introduction

    Over the last few years, American citizens have elected many progressive district attorneys who ran on a platform of ending mass incarceration. (2) One of the primary tools these progressive district attorneys utilize to further this goal is nolle prosequi? Nolle prosequi is "an entry on a record in a criminal case file that the prosecutor or court has discontinued the case." (4) When given complete discretion to nolle prosequi, prosecutors have total control to dismiss charges prior to trial and even after conviction. (5)

    Despite nolle prosequi's influential nature as a tool, there is not one unifying theory on the amount of discretion prosecutors should have when using it. (6) Many state judicial branches view the power of nolle prosequi as quintessential to prosecutorial authority. (7) Others consider judicial oversight necessary to prevent evil and corrupt prosecutors from using nolle prosequi inappropriately. (8) Seven states have decided that nolle prosequi is too dangerous and have abolished it altogether. (9) Sixteen states require prosecutors to obtain the court's consent, otherwise known as "leave of court," prior to exercising their discretion not to prosecute. (10) Meanwhile, others have limited the power of prosecutors only in situations where prosecutors used nolle prosequi in bad faith. (11)

    This Note examines the history of nolle prosequi as a tool of prosecutorial discretion and how it implicates the power of both state and federal executive branches, judicial branches, and the grand jury. (12) This Note continues by outlining a national survey on different states' approaches to judicial oversight of nolle prosequi. (13) This Note then discusses the limits and benefits of each approach and argues that judicial oversight of decisions not to prosecute should be limited to circumstances of corruption and infringement on defendants' rights. (14) Finally, this Note concludes by recommending limited judicial oversight and a requirement for state prosecutors to state their reasoning on the record, which would balance both the autonomy of state prosecutors as elected officials and the sanctity of defendants' rights. (15)

  2. History

    1. Prosecutors as Servants of the Law

      Both state and federal prosecutors are executive branch officials responsible for reviewing evidence and assisting criminal investigations. (16) Additionally, prosecutors determine whom to prosecute based on the sufficiency of the evidence. (17) Finally, prosecutors oversee prosecutions according to applicable constitutions, statutes, and precedents. (18) The Supreme Court has described prosecutors as "the servants] of the law," tasked to both punish the guilty and ensure that the innocent do not suffer. (19) The executive branch--including federal prosecutors--has a constitutional duty to ensure the faithful execution of legislatively enacted laws. (20)

      In response to constitutional requirements, Congress created the Office of the Attorney General through the Judiciary Act of 1789. (21) At the time, the Attorney General was only responsible for representing the United States in court and advising the President and agency heads on questions of law. (22) The Attorney General's original obligations were limited to cases argued in front of the Supreme Court. (23) Federal district attorneys, known today as U.S. Attorneys, were initially responsible for the representation of the United States in district and circuit courts. (24) The Attorney General, under the Judiciary Act of 1789, had no authority over these federal district attorneys. (25) In 1861, however, Congress granted the Attorney General limited statutory power over these federal district attorneys. (26) In 1870, Congress established the Department of Justice with the Attorney General at the helm, which gave the Attorney General greater control over prosecutions. (27)

      State constitutions, modeled after the U.S. Constitution, grant state executive branches the responsibility to make sure that "the laws be faithfully executed." (28) State attorneys general and local prosecutors thus have the duty to ensure the faithful execution of the laws as members of the executive branch. (29) Attorneys general and local prosecutors are independent and not influenced by their respective states' judicial branches. (30) Keeping the branches of state government separate and distinct has become a central tenet of the United States' criminal justice system, both in the federal and state systems, in an effort to protect individual liberties. (31) Most states vest the attorney general with exclusive or concurrent jurisdiction over a specific number of limited issues, such as cases involving public corruption, fraud, regulatory crimes, or when local prosecutors have conflicts of interest. (32) The vast majority of states hold elections for local prosecutors who oversee prosecutions--within a geographic jurisdiction--that fall outside the state attorney general's responsibility. (33)

    2. The Importance and Scope of Prosecutorial Discretion

      Because prosecutors are solely responsible for determining which criminal cases to charge and how to proceed with the litigation, the prosecutor's personal judgment, otherwise known as prosecutorial discretion, can change the direction of a case. (34) Local prosecutors' status as elected officials allowed them to exercise more of their own individual discretion in enforcing the laws because they were no longer subject to the varying opinions and politics of those who appointed them. (35) By 1912, forty-eight states had local prosecutors, and all but five states elected their local prosecutors. (36) Supporters of elections for state prosecutors hoped that elections would allow prosecutors to become removed from partisan interests. (37) An increase in crime shortly after World War f shone a spotlight on prosecutors and led to a national reexamination of the state prosecutor's role. (38) Both local and federal crime commissions, created across the country to lead this examination, found that electing local prosecutors led to undue influence from inappropriate sources. (39)

      Currently, there is no universal requirement for prosecutors to publicly state how they use prosecutorial discretion. (40) Nevertheless, several independent groups have begun to collect data on the exercise of this discretion to allow voters to make educated decisions. (41) Additionally, advocates fight for laws to increase prosecutorial transparency and require prosecutors to report data on defendants throughout all stages of litigation. (42)

      From the first allegations of criminal conduct to the end of a criminal case, prosecutors may use their discretion to alter the course of a case at several key moments. (43) During an investigation, prosecutors can guide police toward certain lines of investigation and decide whether to use subpoenas and warrants to obtain new evidence. (44) Much of the modem prosecutor's time is spent exercising discretion during the investigation of criminal charges and making important investigative decisions. (45) The Supreme Court has recognized that the prosecutor's role as an advocate for the State extends to investigative actions outside the courtroom setting. (46) Beyond ethical concerns and constitutional limitations, decision making at this phase is without judicial oversight to give the prosecutor a necessary amount of autonomy. (47)

      Before filing charges, prosecutors use their discretion to decide what charges to bring based on the evidence, the prosecutor's doubts, and the public interest. (48) After the investigation, the decisions of whether to prosecute and what charges to file or bring before a grand jury generally rest entirely within the prosecutor's discretion. (49) The prosecutor must weigh the strength of the case, the prosecution's general deterrence policies, enforcement priorities, and the case's relationship to any overall enforcement plan. (50) Because the factors weighed in each case are ill-suited for judicial oversight, discretion at this phase is quite broad. (51)

      During plea bargaining, prosecutors use their discretion to decide what offers to make to defendants and which defendants' offers to accept. (52) There is no constitutional right to plead guilty, and prosecutors do not need to participate in any negotiation if they prefer to try a case. (53) Nevertheless, state prosecutors rely on discretion during plea bargaining and nearly 90% of all criminal cases in the United States end in plea agreements. (54) Judges allow prosecutors broad discretion in this stage of litigation because judges may accept or reject guilty pleas and have full control of sentencing. (55)

      Throughout grand jury proceedings and at various stages of a trial, the prosecutor may choose how best to present evidence of guilt and decide which proper arguments to put forward. (56) Prosecutors have wide latitude to present evidence and make any proper legal arguments in whichever manner they feel is best. (57)

      Finally, after filing charges, prosecutors may use their discretion to discontinue or abandon a pending case. (58) Prosecutors can exercise this discretion through either filing a motion to dismiss the case or a nolle prosequi, (59) Federal prosecutors have wide latitude concerning when to formally dismiss charges, although leave of court is still necessary. (60) Some federal circuits have held that judges may withhold leave of court only if the prosecutor's request is clearly contrary to manifest public interest. (61) State courts also require judicial approval...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT