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May 15, 2008

New piece on federal prosecutorial discretion

One of many reasons I do not get too concerned about the exercise of broad federal judicial sentencing discretion is because I have long believed (or perhaps I should say long feared) that federal prosecutorial discretion is always much greater and much less transparent than judicial discretion.  With this perspective, I am looking forward to reading this new piece from Ellen Podgor, titled "Department of Justice Guidelines: Balancing 'Discretionary Justice'."  Here is the abstract:

Prosecutors are afforded enormous discretion in a multitude of decisions. Internal guidelines of the Department of Justice (DOJ) assist federal prosecutors in making the decisions that fall within their discretionary realm. Although these guidelines are policy statements and not legislative rules, they offer an element of consistency to the decision-making process, provide education for newcomers to the department, and can serve as a restraint on prosecutorial discretion.

Prosecutors do not always adhere to these internal guidelines. This article studies ways to achieve better compliance. It examines remedies that achieve a balance between continuing the practice of having guidelines and yet also having meaningful policies that are adhered to by department employees.

May 15, 2008 at 08:38 AM | Permalink


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If you're interested in state prosecutorial discretion, see here and here--I argue that untrammelled prosecutorial discretion violates the requirement that government supply the "protection of the laws" (i.e., remedial and law-enforcement services) equally to all crime victims within a state.

Posted by: Chris | May 16, 2008 8:24:56 AM

This concern, prosecutorial discretion, dovetails nicely with concerns and discussion of plea bargaining.

Posted by: beth curtis | May 16, 2008 11:55:25 AM

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