Prosecution: Prosecutorial Discretion

There are many reasons why a prosecutor would decline to prosecute a case that in theory could be brought, or to accept a guilty plea to lesser charges where a more serious charge could in principle be supported. First, the prosecutor might decide that the evidence in a case is simply not strong enough to justify prosecution. Evidence that is sufficient to justify the police in making an arrest is not necessarily enough to permit a finding of guilt. The prosecutor has the responsibility of reviewing the evidence developed by the police and determining whether a charge can be justified, and many charges brought by the police are dismissed at this stage. Of course, it is the prosecutor's duty to dismiss charges not founded on sufficient evidence, so that such cases might be seen as exercises of discretion only in the weaker senses.

In other cases, however, the evidence, while legally sufficient to permit a conviction, is still not strong enough to persuade the prosecutor himself of the suspect's guilt, or at least to create a reasonable likelihood of conviction. Most prosecutors believe that they have a moral obligation not to bring a charge where they themselves harbor doubts about the suspect's guilt. (This position is not universally held; some have argued that in some close cases, such as a victim's strongly confident but potentially questionable identification of a perpetrator, the matter should be put to a jury regardless of the prosecutor's personal view.) Even where the prosecutor herself is confident of guilt, and the evidence is legally sufficient, the prosecutor might decide that it is unduly wasteful of limited law enforcement and judicial resources to pursue a case in which the difficult burden of proving guilt beyond a reasonable doubt to a unanimous jury is unlikely to be carried successfully. This is a prototypical question of prosecutorial discretion: where the seriousness of the crime or the dangerousness of the offender is believed to create a significant societal interest in punishment, the prosecutor is more likely to choose to invest resources at a relatively lower likelihood of success.

Second, the prosecutor might decide in a particular case that the interest of society is better served by exercising mercy than by imposing a criminal punishment on an offender. Perhaps the offense was an unusual instance of yielding to extreme temptation by a person of otherwise good moral character, or perhaps the offender acted under the influence of drugs or alcohol, and could better be rehabilitated by a noncriminal treatment program than by prison. Or perhaps the offender's action, while falling within the letter of a broad law, did not really cause the harm or create the risk of harm that the law was designed to avoid, and might well have been excluded from its coverage had the legislature anticipated the specific situation and considered its language more carefully. In such situations, the prosecutor might decide that a criminal conviction, and the stigma of a criminal record, would be excessive punishment even if the judge was permitted to, and chose to, impose probation or some other minimal punishment.

Third, as already mentioned in passing, the prosecutor in most jurisdictions has a heavy responsibility to marshal limited law enforcement resources. American crime rates in the last third of the twentieth century have been high; moreover, American criminal law subjects to potential criminal punishment a wide range of conduct not included in the F.B.I.'s "index" of crime rates, which comprises mostly serious, common law crimes against person and property. The budgets of police departments, investigative agencies, prosecutors' offices, courts, and prisons do not permit the full investigation, prosecution, and punishment of all crimes reported to the police. As a consequence, the prosecutor engages in a kind of triage, determining which categories of case receive priority; which types of offenses should be pursued aggressively, more passively, or not at all; and which cases should be brought only where easy convictions can be expected. Even cases that the prosecutor might choose to pursue if the institutions of justice were better funded will be sacrificed if the prosecutor thinks that the overall goal of minimizing serious crime would be better served by investing the necessary resources elsewhere. These decisions may be made on a case-by-case basis, or whole categories of crime may be relegated to a lower level of priority, or even not prosecuted at all.

Fourth, prosecutors frequently exercise discretion for tactical reasons. Leniency, or even complete immunity from prosecution, is commonly extended to criminals who "cooperate" with the authorities in the investigation or prosecution of more serious cases or more dangerous offenders. Although this practice is pervasive in the system, has deep historical roots, and is in principle justified, at least from a utilitarian standpoint, by the greater value to society of securing the testimony of minor offenders than of extracting full punishment, it remains controversial. Critics charge that serious offenders can escape prosecution based on the morally irrelevant degree to which they possess knowledge of others' crimes. Moreover, the availability of lenient treatment can create a strong incentive to criminals to implicate others falsely, or to fit their testimony to the theories of prosecutors regardless of the truth. Still more controversially, the potential for securing testimony against targets of investigation can lead prosecutors not only to be unduly generous to the dangerous criminal peddling information in return for leniency, but also to bring charges against marginal offenders who would not otherwise be charged, in order to pressure them to cooperate with investigators.

The prosecutor's control of this trade-off between prosecution and leniency, coupled with the prosecutor's authority to decide how much evidence is enough to proceed, and the need of the police for prosecutorial assistance in using certain investigative tools (such as the grand jury's power to compel testimony, the ability to provide statutory immunity to override a witness's invocation of his Fifth Amendment privilege, or formal legal applications to courts to authorize searches or electronic surveillance that require judicial approval), have expanded the role, and the discretion, of prosecutors beyond the courtroom into the investigative phase of the criminal process. In routine criminal cases, the traditional division of roles between the police, who investigate complaints and arrest offenders, and the prosecutors, who decide whether to bring formal charges and present the evidence in court, remains approximately in place. But in more complex investigations, such as those involving white-collar offenses, organized crime, and serious political corruption, the prosecutor is often an integral part of the investigative team, and is deeply involved in strategic decisions about the conduct of the investigation, from long before a case is ready to proceed to indictment and trial. The prosecutor's priorities, legal determinations, and sense of justice will thus be deeply implicated not only in ultimate decisions about the charges to be brought or the plea to be accepted, but also in the day-to-day control of the investigation.