Prosecution: Prosecutorial Discretion

The most significant aspect of the prosecutorial discretion is the decision whether to bring charges, and what charges to bring. As noted above, the prosecutor has virtually unlimited discretion not to proceed with a case, for any reason that she deems appropriate. This discretion is very frequently exercised, particularly in minor cases, where the prosecutor will often decide that a particular incident, or even a particular category of offenses, does not warrant the expenditure of resources or serious social sanction entailed by a criminal prosecution.

In more serious cases, the decision to withhold the criminal sanction entirely is less common. But this does not render prosecutorial discretion less important. American criminal codes frequently 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. For example, a particular fraudulent scheme may permit prosecutors to bring charges of larceny, which may be differentiated into degrees, as well as less serious charges of forgery, impersonation, making false statements or falsifying business records. The prosecutor may elect to forgo the most serious charges, or to bring only a subset of the charges that may in theory be sustainable.

This discretion may be particularly important where some or all of the charges contemplated contain mandatory minimum sentences. In such a case, the prosecutor may in effect exercise significant control over the sentence to be imposed if the defendant is convicted. By choosing to bring the charge that carries the mandatory penalty, the prosecutor can guarantee that the judge has no power to impose a lesser sentence, while choosing a different applicable charge that lacks the mandatory penalty will free the judge to impose a more lenient penalty if she wishes.

Moreover, prosecutors can also influence defendants' fates by a variety of other decisions that fall within their discretion. Like the police, prosecutors have broad power to institute investigations, and can choose among different investigative tools, generally without judicial supervision or constraint. Indeed, because of their control of the broad investigative powers of the grand jury, prosecutors have much more power to institute intrusive investigations than the police. Potential witnesses can decline to cooperate with the police for any reason or for no reason at all, but the prosecutor can exercise the grand jury's subpoena power to require witnesses to attend and to answer, absent a legally valid privilege. Thus, the prosecutor, subject only to very limited judicial review, can require witnesses to undergo extensive and intrusive questioning, or to respond to burdensome and expensive demands for the production of documents, whenever he deems it desirable to further an investigation. By the same token, a prosecutor can decide that a case is not even worth investigating, or that a cursory inquiry will be sufficient.

After a charge is brought, the prosecutor decides how aggressively the case should be litigated. As already discussed, this includes the power to compromise or settle the case by accepting a lesser plea in satisfaction of the original charges. While courts have some authority to reject a plea bargain that is not in the public interest (in contrast to their lack of power to compel a prosecutor to bring a charge in the first instance), this power is exercised extremely rarely, out of deference to the executive branch's prerogatives and due to the impracticality of insisting that a prosecutor proceed to try a case to which she is no longer committed. Accordingly, the prosecutor for the most part retains throughout the case the discretion over charges that she had at the outset.

But even more routine litigation decisions, of the sort commonly entrusted to lawyers, can have a profound impact on a litigant, and as the state's lawyer, the prosecutor controls those decisions. The prosecutor's evaluation of the seriousness of the charges, and of the importance of securing a conviction, will determine whether a case is presented perfunctorily, or whether "hardball" tactics will be used. Will the resources necessary to call additional expert witnesses or to use expensive charts or computer graphics be devoted to the case? Will the office's best lawyers be assigned to work on it? Will the prosecutor resist motions for the suppression of evidence to the utmost, or agree not to present contested evidence to save time and effort? All of these decisions, and many more, rest in the prosecutor's power, and will significantly effect both the costs of presenting a defense and the likelihood that a particular defendant will be acquitted.

Even after conviction, discretionary choices by the prosecutor will have a significant effect on a defendant's fate. Even where mandatory sentences do not apply, and judges retain broad power to sentence anywhere within a broad range, the prosecutor's stance can influence the court. In a busy court operating under basic adversarial assumptions, judges will not often feel the need to impose a greater sentence than that recommended by the prosecutor. And the vigor with which a prosecutor advocates a severe sentence may influence a judge not only on the merits, but also by signaling to the judge the likelihood that her decision will be the subject of public criticism if the recommendation is rejected. Accordingly, the prosecutor's decision to recommend a sentence or to stand mute, the particular sentence the prosecutor chooses to advocate, and the aggressiveness with which that recommendation is pursued will all be important. Where the judge's sentencing decision is constrained by quasi-mandatory sentencing guidelines, moreover, the prosecutor's role can become even more potent. Just as the prosecutor evaluates whether the evidence will support a particular criminal charge and whether it is in the state's interest to pursue that charge, the prosecutor will evaluate whether the evidence justifies the application of a particular aggravating or mitigating factor, and whether the state's interest permits or demands expending resources to litigate its applicability. Since the applicability of these sentencing factors, like the presence of the elements of the crime itself, will often be controversial, the prosecutor generally will have considerable discretion to choose to litigate or compromise these issues. (Under current federal law, the prosecutor has yet another source of power over the sentencing process. Where a defendant has cooperated with the prosecution by providing substantial assistance with the investigation and prosecution of others, the judge is authorized to impose a sentence below the otherwise-applicable guideline range, and even below the statutory mandatory minimum—but only if the prosecutor specifically authorizes the departure from the norm.)