Prosecution: Prosecutorial Discretion

There is a fairly extensive academic literature concerning the desirability of controlling or limiting prosecutorial discretion. The issues and suggested remedies to a considerable degree parallel those relating to judicial sentencing discretion. Critics of discretion argue that equal justice is best achieved by the application of formal rules that constrain official decision-makers. Laws, in this view, should be clear and relatively self-executing, to prevent officials from applying subjective and potentially biased standards. Discretionary decisions, moreover, are rarely transparent: unlike courts applying legal principles, officials making more subjective or intuitive choices operate behind closed doors, without an obligation to state reasons or to rationalize potentially conflicting decisions in different cases. These due process values are particularly important where the stakes are as high as they are in the criminal justice system.

Opponents of this view present both practical and conceptual arguments. The practical and contingent arguments are rooted in the actualities of the U.S. criminal justice system. This strand of argument concedes that it might be better in theory to have sharply defined rules that identify all and only that behavior that ought to be punished, and that leave little room for subjective choice. To achieve such a system, however, would require reform of much more in our legal system than simply the elimination of prosecutorial discretion. Our existing penal codes are filled with statutes that are unnecessary, over-broad, or poorly drafted, and the effort to enforce the law as written would be impossible without vastly expanded law enforcement and judicial resources, and intolerable if such resources were provided. Without thoroughgoing reform of the criminal law—a reform that may be impossible to achieve politically—the discretion of prosecutors and judges, it is argued, are necessary to avoid the injustice that would result from literal application of severe and ill-considered criminal statutes.

Other defenders of discretion take a stronger view, arguing that the need for discretionary systems of mercy and judgment are necessary and desirable in principle, and not only because our particular political or legal system is flawed. On this view, the aspiration to be "a government of laws, not men," is not an absolute value, to be pressed at all costs, but is a value that, like many others, would be intolerable if pressed to extremes. Criminal laws are often passed for expressive reasons, and not because the legislature expects or wants them to be enforced literally. From this perspective, that is not a regrettable failing of our political system, but a part of the function of the criminal law, that must in turn be moderated by sensible officials who understand that not every case that falls within the literal terms of the law is meant to be punished. No legal system can achieve a perfect congruence of formal rule and desired outcome, because the multiplicity and elusiveness of the factors that bear on the moral evaluation of human conduct cannot be captured without foreseeing and evaluating the infinite permutations of circumstances that might occur—a task perhaps beyond human wisdom, and certainly beyond the capacity of a body of legal rules that also aspires to be concise, clear, and understandable by the public.

Even if it were conceded that some measure of official discretion is necessary, however, it would not follow that prosecutors ought to be the officials exercising it, that the discretion should be exercised without public accountability, or that some form of review of the resulting decisions should not be permitted. Many have proposed schemes for regulating and reforming prosecutorial discretion, or for authorizing judicial review of prosecutorial decisions. It has been argued, for example, that prosecutors, like other administrative or executive agencies entrusted with substantial delegated power, should be required to adopt formal regulations governing their decisions, or that prosecutors should be required to state their reasons for particular actions. Victims' rights advocates have proposed that victims should be given at least a consultative role, and perhaps even a veto power, over prosecutors' charging and plea bargaining decisions.

Few of these proposals have proved sufficiently appealing to secure broad political support. If it is accepted that discretionary decisionmaking is to some degree inevitable, the quest for standards is to that extent quixotic—if the legislature cannot or will not capture in statutes the precise conduct it expects to lead to punishment, there is little reason to think that prosecutors or judges will be able to do a better job by way of regulations or common law articulation of standards. Nor is it clear that providing for additional levels of review will improve decision-making. The buck has to stop somewhere, and setting additional layers of review simply moves the ultimate decision to another official, without making that official's decision any more likely to be correct. Moreover, to the extent that the criteria for prosecution correctly include judgments about the social utility to be gained from the prosecution, as well as a moral evaluation of the wrongfulness of the defendant's conduct, the prosecutor—or at least some analogous, politically responsible official of the executive branch—is probably better placed, and has more political authority, to evaluate these factors than a judge. The recent unsatisfactory experience at the federal level with nonpolitically responsible independent prosecutors in high-visibility political cases has shown the importance of political accountability in making prosecutorial choices.