Prosecution: Prosecutorial Discretion

The U.S. Department of Justice, in its manual for United States attorneys and particularly in the section of the manual entitled "Principles of Federal Prosecution," has made a considerable effort to identify and articulate the factors that bear on the exercise of prosecutorial discretion, both in general and as applied to particular statutes. Moreover, both the department and the individual United States attorneys offices have established internal procedures requiring particular kinds of decisions to be reviewed or approved internally at higher levels of authority than individual prosecutors.

These efforts demonstrate both the promise and the limitation of such internal guidelines. On the one hand, efforts to articulate, even at a high level of generality, the considerations to be applied in making discretionary decisions provide guidance to prosecutors in approaching their responsibilities, and to defense counsel in couching arguments to persuade the decision-makers. By announcing these principles, the department contributes to public debate and accountability, and commits itself to apply its discretion in ways and for reasons the legitimacy of which can be defended or debated.

On the other hand, the standards are generally quite vague and admit of numerous and often subjective exceptions and qualifications. The principles are proclaimed for internal use only, and provide no rights of judicial enforcement. Even if they were enforceable, however, there would be little grip for judicial review. For example, in determining whether there is a "substantial federal interest" in a prosecution, the prosecutor is instructed to "weigh all relevant considerations," including, but evidently not limited to, federal law enforcement priorities, the nature and seriousness of the offense, the deterrent effect of prosecution, the person's culpability in connection with the offense, the person's history with respect to criminal activity, the person's willingness to cooperate in the investigation or prosecution of others, and the probable sentence or other consequences if the person is convicted. Though some might question one or another of these factors, most people would agree that these are relevant factors. Merely to list them, however, and to consider that these various incommensurable factors are somehow to be "weighed" against each other, is to demonstrate how complex, subtle, and subjective a judgment is being called for.

As the power of prosecutors relevant to other actors in the criminal justice system has grown, as sophisticated defense lawyers have come to appreciate that power, and as conscientious prosecutors have sought to define relevant standards and provide for internal review, an increasing proportion of criminal law practice has come to involve negotiations with or presentations to prosecutors, as opposed to arguments before courts and juries. For the vast majority of defendants—probably over 90 percent—the most important decisions affecting their fate are made in prosecutors offices rather than in courtrooms. Some observers have suggested that prosecutorial decision-making is so important that we have in effect created a criminal justice system that in reality is inquisitorial and administrative, rather than adversarial and judicial. It may be that the most important developments in American criminal procedure in the new century will involve the effort to render that system more public and accountable by regulating in various ways the procedure and substance of discretionary prosecutorial decisions.