#17108 - Role Of Prosecutor Charging, Selective Prosecutions, Plea Bargaining - Criminal Law

The Complexities of Crime Control

The Role of the Prosecutor: Charging, Selective Prosecution, Plea Bargaining

Theme: broad discretion, unchecked by courts

Charging

• Discretion: little oversight, limited resources, no standard for weighing factors

  • Can file charges whenever there is "probable cause"

  • Considerations:

    • Sympathetic factors (mental health, upbringing, economic hardship societal pressures, age and brain development, first offender v. pattern of behavior, past harm)

    • Victim input

    • Politics/public sentiment

    • Chances of conviction

    • Other options (diversion, rehab)

    • Limited resources

    • Impact on society/defendant

    • Rehabilitative and deterrence effects

    • Chance of re-offending

• Think about how theories of punishment affect prosecutor's decision to charge

• Deciding how much to punish and purposes of punishment

  • Retributivism and difficulty of assessing punishment

  • Utilitarianism and the odds of detection [detection is part of deterrence: if you can detect higher percentage of crimes, greater deterrence effect (think low clearance rates of murder in Chicago)] v. amount of punishment

  • Rehabilitation and problem solving courts

  • Incapacitation and risk instruments

Deciding not to charge

• Unreviewable by the court because of separation of powers (b/w judicial and executive branches) concern

  • Plus unique concern of secrecy (not present in other executive acts)

    • Protect reputation of accused

    • Don't want public to know factors guiding charging decisions

• Many reasons for prosecutors not to charge despite sufficient evidence (fairness, resources, political)

  • Secrecy of accused/confidential info

  • Resource constraints

  • Political considerations (ex. If prosecutor is elected)

  • Fairness (sympathetic factors)

• Attica

  • decision not to charge those involved in Attica riots stands, court not mandate exec. action

  • Court says it cannot tell executive branch/prosecutor to bring charges because of separation of powers concern > good law everywhere

  • The decision not to charge is esp. different from other executive acts because of the secrecy to protect accused and to protect government factors in exercising discretion

  • Takeaway: decisions not to charge are unreviewable bc separation of powers concern

Selective prosecutions

• Picking what to charge on an unlawful basis (focus on race here)

  • Demanding threshold for government discovery (gov turning over discovery regarding charging decisions in a crime category) in selective prosecution claim (even before showing discriminatory intent)

    • ****burden on D to show similarly situated defendants of a different race who could have, but were not charged (or charged in state court where penalties are lower, ex. For crack cocaine)

    • Difficult for D to meet burden because information inaccessible by the public, anecdotal information not enough

    • Policy: (1) resources constrained, don't want to respond to discovery requests (2) assume racial differences in crime rates (not consider racially discriminatory enforcement practices)

• Armstrong

  • A) Court sets demanding threshold for discovery (of government to hand over documents that indicate charging decisions in a certain crime category): D must show that other Ds who are similarly situated and of a different race could have been prosecuted but were not

    • Difficult for private citizen to obtain this info; court does not accept anecdotal evidence

  • B) Court assumes that crime commissions vary by race (vs. thinking that it is a result of discriminatory law enforcement practices)

Plea bargaining/coercive charging

• Prosecutors may threaten of high sentences as long as no physical coercion, charge supported by evidence, plea extracted intelligently, knowingly, voluntary

  • (1) authorized by statute and (2) supported by sufficient evidence

    • Bordenkircher - prosecutor's offer of plea under threat of more serious indictment is allowed

  • (3) plea made knowingly and intelligently + voluntarily

    • Brady - his plea was made voluntarily, knowingly and intelligently; he was competent; he had opportunity to assess the plea; had advice of his attorney; not coerced by threat of punishment

• Plea cannot be produced by

  • Actual physical harm (threat of punishment is not considered physical harm)

  • Threatening a charge/punishment for which there is no sufficient evidence

• Policy considerations for plea bargaining (and associated lower penalties):

  • + Conserve resources for prosecutor/government

  • + Beneficial for D - gives certainty, avoid the risk of conviction and higher sentence

  • + Showing of remorse by plea makes someone deserving of lower sentences/better positioned to rehabilitate

  • + encourages prosecutor transparency (not under the table threat)

  • - Frequent practices of plea bargaining has contributed to a high incarcerated population

  • - Encourages innocent people to plea guilty

  • - huge differences between punishments by plea or by conviction

  • - Exculpatory evidence not turned over before plea bargaining process

• Brady

  • Court affirmed practice of plea bargain if plea accepted...