« Friday forum: What kind of sentence would you give to Roman Polanski? | Main | Effective review of the decline of the criminal jury trial in Virginia and elsewhere »

October 16, 2009

Off to Temple to participate in great program on prosecutorial discretion

A delayed flight has provided me with a chance to note that I am off to Philadelphia this afternoon in order to participate tomorrow in the Temple Political and Civil Rights Law Review's symposium, which is titled "Examining Modern Approaches to Prosecutorial Discretion."

I have the distinct honor of being one the keynote speaker's at this event, and I am very much looking forward to hearing all the terrific presenters who will be on four panels. More information about the event and all the top-flight participants is available at this website, which provides this basic description of some of the topics to be covered:

Symposium panels will focus on issues of prosecutorial discretion in juvenile cases, prosecutorial discretion in death eligible cases, sentencing guidelines and plea bargaining, and the necessity of ethical inquiries, including a comparison of prosecutor's ethical duties to the general public and crime victims with the ethical duties owed defendants.

October 16, 2009 at 04:43 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Off to Temple to participate in great program on prosecutorial discretion:


doug, I hope there is discussion about what I believe is a serious issue about prosecutorial discretion in the capital context.

Following Ring v Arizona, I do not believe prosecutors have the discretion to decide when a first degree murder case is capital and when it is noncapital. I believe that the one aggravator which increases potential punishment for first degree murder from life to death is an element of an offense greater than what Justice Scalia calls "murder simpliciter", and therefore a grand jury must find if there is probable cause to believe the aggravator exists.

For a prosecutor to say that he or she believes that an aggravating factor exists and the case will therefore be capital is, in my opinion, inconsistent with 700 years of Anglo American tradition with respect to the function of the grand jury.

I have an extensive motion tracing the role of the grand jury
and the changes brought about by Apprendi Ring on prosecutorial discretion if anyone is interested in the issue.

bruce cunningham

Posted by: bruce cunningham | Oct 16, 2009 6:26:56 PM

Prof. Berman: Congratulations. It is quite an honor to be chosen as keynote speaker for such an august symposium.

It ends around 5 PM, when nightfall approaches in North Philadelphia. Try an experiment. Find a Philadelphia police official with a weapon. Say this, "What a nice night. I feel like taking a walk around the area. Show me around the neighborhood. Let's get some fried chicken. It's on me." Tell us what the armed police official says.

Posted by: Supremacy Claus | Oct 16, 2009 9:24:38 PM

At lunch, ask the local ADA's if they are at will employees or civil service. What is the meaning of prosecutorial discretion in the context of being an at will employee supervised by a left wing, feminist, politician hack, criminal lover?

Posted by: Supremacy Claus | Oct 17, 2009 12:57:55 AM

Hypocrisy check. These criminal lover cult criminals condemn all others. They are lazy, worthless government slackers. When they condemn an innocent person, out of carelessness, they should be willing to allow a legal malpractice claim. How can they justify their self-dealt immunities? Anyone who claims immunity gives full justification to violent self help by the victims of their oppression.

What is the innocence rate in plea bargaining? Have they ever checked? Are they even curious?

What is the ethic of using the office to get into the paper, such as spending $millions to prosecute Martha Stewart on a $100 beef?

On the other hand, aside from being criminal lovers, dumbasses, and slacking government worthless vermin, how do they explain the nearly total immunity of the violent criminal? One has to commit dozens of crimes to get prosecuted around there. Murder a person, walk in, confess, one gets on a waiting list to get into jail.

However horrible these lawyers are, they are still an order of magnitude better at their jobs than tort lawyers. They win 75% of the cases. They do not bring weak cases to swamp the court.

Posted by: Supremacy Claus | Oct 17, 2009 2:33:05 AM

SC. In response to your first post I humbly submit that what the armed police official says will in a large part depend on whether or not he or she likes fired chicken.

Posted by: Daniel | Oct 17, 2009 10:10:09 AM

Even if he is a fried chicken freak, he will be too afraid for his life to find himself in the street of that area after dark, where the lawyer works. Where the lawyer lives, only 5 miles away, he can leave a $20 on the sidewalk and find it there a week later, and there is so little crime, shoplifting makes the local paper. There is no 123D. There is 1D, and the death penalty is at the scene if any of the locals gets high, and wanders into that area by mistake. There is active racial profiling, even if you are millionaire music producer in a Bentley. If you try to get a drug dealer to cross the street into the suburban county to get his money from the trunk of the car, they refuse. They want to stay on the Philadelphia side, and tell you to bring across the street to the Philadelphia side. It is an unspoken deal, with immunity for crime on one side of the street, and certain death or prison on the other. No prosecutor will discuss this unspoken agreement. And Prof. Berman is too well mannered to ask about it.

The police have given up on North Philadelphia. The deal is, do not disrespect the police by doing a crime in our face, and we leave you alone to do as you please, after the cruiser passes by. It is a Fallujah like enclave, lifestyle community for crime. Personal survival is a preoccupation interrupted by the full time Roman Orgy lifestyle. Life is nasty, brutish, and short. The adults choose their lifestyle community, as you might choose, will it be golf or marina living.

As to kids, it is a blast. You get to enjoy all adult pleasures at age 12, at 3 AM on a school night, because your single mother is too high to stop you.

Posted by: Supremacy Claus | Oct 17, 2009 10:44:45 AM


“Students from all over the world, [including those from countries that have survived recent civil wars] don’t feel safe in Philly,” IELP Community Programs Director Miriam Oppenheimer wrote in an e-mail Thursday.

Thank the lawyer, she did not say.

Temple U police force is among the largest in Pennsylvania. They take the best from retired police to lead it, pay them well. Its members have full academy training. It is Third World, with guarded gated enclaves that are safe and armed security escorts between facilities. Thank the lawyer.

Posted by: Supremacy Claus | Oct 17, 2009 11:05:08 AM

Bruce C., this capital argument sounds similar to your wobbler argument that you brought up here (a third strike for a DUI). I'm reminded of the California Supreme Court's ruling in People v. Superior Court (Romero), No. S045097, 1996 WL 338203 (Cal. June 20, 1996), which found that denying discretion to the judge to strike a prior in three strikes cases is a violation of the separation of powers. However, once the judge has discretion, there is no constitutional violation.

When the same question is applied with capital punishment, maybe the real question is if prosecutorial discretion is arbitrary and capricious, and therefore there is a lack of sufficient notice of what the punishment may be. I think maybe the intuitive skepticism common in all of these could be this arbitrary nature of wide discretion. I'm going to re-read Romero to see if this was argued.

I'm apparently the only one on-board with your argument because I think there is something intuitively wrong with so much (arbitrary?) power in this discretion. Your argument is that the legislature cannot delegate this arbitrary power, that the statutes must provide concrete notice, if I understand correctly. I would add that a jury should find the facts necessary to make the determination. In other words, only a jury could find the facts necessary to determine if a wobbler is a felony or not, and only a jury can find the facts necessary to determine if a capital crime is a death penalty crime or not. Both require fact finding. While the prosecutor has discretion on what to charge, these factual questions go the the nature of the offense within the specific charge. What is common to both capital and wobbler charges is a specific but separate statute or subsection that requires fact finding. To me, the fundamental question is if the legislature can delegate this fact finding, and even if so, is it arbitrary?

Posted by: George | Oct 17, 2009 12:11:20 PM

There is a mystery here that must be solved. Temple in Fallujah is only 1-2 miles from the downtown skyscrapers. The houses appear to have belonged to rich people 100 years ago. That real estate should be the most expensive and luxurious in the area. If crime were controlled, regular folks would move there, and could walk to work downtown.

Crime may be a way to keep the value of land down, and to prop up the value of suburban properties. The lawyer may only be an agent, and not the maker of this situation. This is not a conspiracy theory. It is a socialization theory. The slightest inconvenience of the criminal downtown must be crushed. Then, it is the criminal who must be crushed in the surrounding suburbs.

Posted by: Supremacy Claus | Oct 17, 2009 12:15:26 PM

Bruce C., what about those states that require a jury to determine what the sentence is, death or not, after hearing all the facts? Do you think that constitutional?

Posted by: George | Oct 17, 2009 12:20:47 PM

George, I'll address your second post first since it is more straightforward and there is solid authority on point.

Yes, I think it is constitutional for a jury, or a judge, to decide life or death , after the jury convicts the def of capital murder by finding one aggravator in addition to guilt of murder simpliciter.

Justice Scalia says in Ring, "Those states that leave the ultimate life or death decision to the judge may continue to do so by requiring a prior jury finding of aggravating factor in the sentencing phase or,more simply, by placing the aggravating factor determination(where it belongs anyway) in the guilt phase." 536 US 612.

In NC, and most other states, a def has a state statutory right to a jury determination of sentence. But in ALL states a capital defendant has a Sixth Amendment right to have a jury decide if he is guilty of capital murder by finding one aggravator in addition to guilt of murder simpliciter, which is the intentional killing of an ordinary person.

Your other question has lots of issues swirling around like a marble cake and I'll sort them out and respond.


Posted by: bruce cunningham | Oct 17, 2009 4:26:58 PM

George, let's deal with first questions first. That is the difference between jurisdiction of a court to try someone for capital murder and notice to a defendant that the prosecutor is seeking the death penalty. Those are two different things.

In all states I'm familiar with only the grand jury can decide what crime a def can be tried for by finding probable cause to believe he committed that crime.

Suppose a grand jury finds probable cause to believe that the def committed common law robbery (which in NC is robbing someone without a gun but putting them in fear of violence). Then, before the trial starts, the prosecutor says, "well, I think the def had a gun, so we're going to try him for the greater offense of Armed Robbery." The court has no jurisdiction to try the def for Armed Robbery even if the prosecutor gave the def notice of that intention.

Before Ring, death was a more severe punishment than life for the offense of first degree murder. Now, death is one of two possible punishments for the more severe crime of capital murder.

My original question to Doug related to a prosecutor having discretion to decide whether to seek death for first degree murder. After Ring, in my view, prosecutors have no discretion to decide what punishment is available for a particular crime. That is entirely the province of the legislature which may not be delegated. The punishment for simple first degree murder in NC is life. Period. The punishment for capital murder is either death or life.

I read Romero a long time ago and remember that I thought it made no sense. I'll read it again.

bruce cunningham

Posted by: bruce cunningham | Oct 17, 2009 4:45:42 PM

"After Ring, in my view, prosecutors have no discretion to decide what punishment is available for a particular crime. That is entirely the province of the legislature which may not be delegated."

I find that grandiose. As I understand Romero, the court there held that the separation of power doctrine prevents the state legislature from taking a right that adheres to the court and transferring it to the executive branch. That makes sense. But the right to determine a punishment for a crime in the first instance belongs to the legislature, not the court, when it defines unlawful conduct. If the legislature wants to delegate it's own right to the executive branch I neither see how that is is unconstitutional nor any or the court's business, frankly. The right to sentence is obviously a judicial right; the right to charge is an executive branch decision. It would be a violation of the separation of powers for the court to presume to tell the prosecutor what charges he or she may or may not bring.

Posted by: Daniel | Oct 17, 2009 5:52:27 PM

I don't think it's grandiose at all, Daniel. Bruce could have something here. Take California's Three Strikes Law as an example. San Fransisco rarely if ever charges a third strike when the current charge is not a serious or violent felony, and rarely if ever did so. San Bernardino County on the other always did, but not as much now. The same is true for the death penalty in that San Fransisco rarely if ever seeks the DP.

That is arbitrary. How does that arbitrary and capricious result come about? Because the legislature gave prosecutors the discretion to to decide. Perhaps we have the separation of powers in part to ensure stability in the law. Violations of the law and the consequences must be codified by the legislature. The reasons are common sense: fair warning. The arbitrary and capricious decisions of the executive by prosecutors may undermine these basic principles.

This isn't exactly what Bruce is arguing, but I'm only trying to suggest the underlying principles of broad prosecutorial discretion could be suspect enough to not be grandiose when questioning them.

Posted by: George | Oct 17, 2009 8:00:29 PM

George. It may very well be that with this particular crime prosecutorial discretion may be arbitrary and capricious *as applied* but I did not take it that Bruce was making an "as applied" argument. The problem with an as applied argument is that the very concept of discretion contains an element of judgment which by definition can something on which people disagree. If the people don't like the way that prosecutors are exercising their discretion they have a means to change the prosecutor: democracy.

Posted by: Daniel | Oct 17, 2009 9:01:58 PM

Daniel and George, thanks for the comments.

Please read Moore v Missouri, 159 U.S. 673 (1895), McDonald v Mass. 180 U.S. 311 (1901), and Graham v West Virginia 224 U.S. 616 (1912). To my knowledge these three cases are the only times that the US Supreme Court has addressed on the merits an equal protection challenge to a three strikes law. (Oyler v Boles is an aberration due to a lapsa linguae)

In each case, the Court said recidivist laws pass equal protection muster because they apply equally to all those similarly situated.

George, what you are calling arbitrary application of the law, I believe can be better analyzed under equal protection. As you say, the three strikes law is being applied differently in San Francisco than San Bernadino. I think such disparity is inconsistent with Moore, McDonald and Graham. Remember we are talking about the application of a sentencing law here, not the clearly discretionary power of prosecutors in one county to pursue a particular crime more often than a prosecutor in another county.
Dan, I think you are confusing a judge's right to sentence with the legislature's power to determine the parameters of punishment for a particular crime. In my view it is inconsistent with the equal protection clause for a prosecutor to decide, on a case by case basis, which persons among those eligible for three strike treatment, will be punished under the three strike law. If you read Moore, McDonald and Graham closely, I think you'll agree.


Posted by: bruce cunningham | Oct 17, 2009 11:03:40 PM

As much discretion should be taken from people who owe their salaries to criminals and their convenience. Prosecutorial discretion is an abomination in the hands of incompetents and criminal lovers. Victims should be able to get a writ of mandamus to get a crime prosecuted. If the prosecutor loses the case, there should be a rebuttable presumption of legal malpractice and contempt of court. The crime victim should be able to sue the intentionally incompetent prosecutor, because he is a criminal lover vermin. Make these criminal lovers start doing their jobs.

All you criminal lovers here, love this. 5000 lynchings of rich black folks and Jews took place after the Reconstruction ended. The prosecutors discretionately refused to prosecute either the lynchings or the confiscatory taking of the deceaseds' properties. Many had the mob pose with the dangling body for postcards to be mailed to family and friends about a great afternoon. The estates of the lynchees were then confiscated and given to lawyers.

The prosecutor is vermin, due no human consideration, because he loves the criminal, the source of his salary. The riskiness of that Temple neighborhood rebuts all the criminal lover bullshit heard and uttered by Prof. Berman. The prosecutor has discretioned to surrender the streets to his real client, the criminal, not the people.

Posted by: Supremacy Claus | Oct 17, 2009 11:42:05 PM

Here is a collection of postcards, with uncovered faces of the mob. The prosecutor refused to prosecute this mass murder. Mass murder got immunized by prosecutorial discretion.


I bet this subject did not come up the left wing propaganda garbage conference on the political rights of criminals.

Posted by: Supremacy Claus | Oct 17, 2009 11:47:19 PM

With respect I think it is you who are confused Bruce. The executive branch has an independent role to play in sentencing. The legislature determines in the first instance what the law is and sets the parameters but with only a few exceptions (such as impeachment) it has no direct power to enforce the law. The judiciary has the independent power to take those parameters set by Congress and determine their application to the case before it. But the judiciary has no power over cases which it has no jurisdiction. The power granted to the executive to enforce the law is not mechanical; it has the sole power to determine what case or controversy is brought before the court. That power includes the power not only to decide what crime is being prosecuted but what sentence is being sought.

Your better line of argument is to extend that advanced in Romero. Namely, that once a case is brought into court by the executive the separation of power doctrine gives the judiciary independent power to decide what cases or controversies it will hear and it is not bound by the prosecutors decision to try a particular case as a capital case. While I think the logic advanced in Romero is sound, I think that the principle of comity would make it's application infrequent.

Posted by: Daniel | Oct 17, 2009 11:50:57 PM

Daniel, "what sentence is being sought" is only permitted within the available sentences provided by the legislature. I would agree, for what it's worth, the the court "is not bound [or perhaps should not be] by the prosecutors decision to try a particular case as a capital case." But what is the court going to base that decision on if not facts not found by the jury? That is precisely the problem. Given the facts, the prosecutor can say it calls for death. Given the same facts, the judge may disagree and say it does not call for death. That is what makes it arbitrary. It could be and is arbitrary from prosecutor to prosecutor and county to county. And because it is arbitrary, there are violations of equal protection.

Bruce agrees that a jury can determine a death sentence, after hearing the facts but is that discretion by the judge or prosecutor that waives fact finding by the jury arbitrary and (therefore?) a violation of equal protection?

So I would argue that giving the judge discretion to disagree with the prosecutor is a step in the right direction but it doesn't go far enough. Indeed, California judges may have that discretion in wobbler cases, but that entails fact finding as required by statute. What is required by statute is different than the discretion prosecutors have on what they charge.

In other words, maybe the legislature gives power to the executive that is really power only a jury can exercise.

It is an interesting discussion.

Posted by: George | Oct 18, 2009 2:04:46 AM

Left wing, feminist, criminal lover trying to intimidate American hero into not enforcing the law.


Posted by: Supremacy Claus | Oct 18, 2009 2:14:41 AM

I bet none of these left wing criminal lovers at that Conference brought up the prosecutorial discretion and forbearance that allowed the lynchings of black folks in the US, or the unlawful round up of the Jews in Germany, or the confiscation of assets by the Church during the Inquisition. Prosecutorial discretion in the hands of incompetents and criminal lovers is an abomination.

Posted by: Supremacy Claus | Oct 18, 2009 4:45:19 AM


Can the California legislature pass a law that says felonious larceny in San Francisco is punishable by five years in prison and felonious larceny in San Bernadino is punishable by ten years in prison? No. Why not? It would violate the equal protection clause.

Can the California legislature pass a law that says stealing more than a thousand dollars in San Francisco is a felony. Stealing more than a thousand dollars in San Bernadino is a misdemeanor? No. Why not? It would violate the equal protection clause.

Can the California legislature pass a law that says if someone steals more than a thousand dollars, the prosecutors in each county can decide whether it is a felony or a misdemeanor , and can decide whether the permissible punishment is five years or ten years? No. Why not? It violates both equal protection and separation of powers.

Can the California legislature pass a law that says a judge can decide whether stealing more than a thousand dollars is a felony or a misdemeanor? No. Why not? It violates equal protection and separation of powers.

Can the California legislature pass a law that says stealing a truck worth more than a thousand dollars is a felony. If it is worth less than a thousand dollars it is a misdemeanor. Someone steals a 1974 pickup truck. Can the prosecutor decide whether to prosecute that person for a felony or a misdemeanor? Yes. Because a prosecutor has discretion to decide what crime to try someone for.

Can the California legislature pass a law that says if the prosecutor chooses to try someone for felony larceny and the def is convicted that the judge can impose a sentence within the range of five years to ten years? Yes, because the legislature has selected a range of punishments for the same crime which applies to people in both San Francisco and San Bernadino and left it up to judges which sentence within the permissible range will be imposed in a given case.


Posted by: bruce cunningham | Oct 18, 2009 7:39:55 AM

George and Daniel,

I think the two of you have practiced law under a conceptually flawed system so long that you think bizarre is normal.

In my opinion, it is bizarre, not to mention unconstitutional, to say that a particular judge or prosecutor on a particular day in a particular county against a particular defendant can decide if a particular crime is a felony or a misdemeanor. Legislatures make that call.

respectfully but perplexed at California law,

Posted by: bruce cunningham | Oct 18, 2009 10:31:17 AM


You write: "what sentence is being sought" is only permitted within the available sentences provided by the legislature.

Exactly, and the legislature permits either life or death. The prosecutor isn't exercising any discretion not already given by the legislature. He or she can't ask for death for jaywalking.

"But what is the court going to base that decision on if not facts not found by the jury?"

It's own independent power as a separate branch of government. In a assessing the charge brought by a prosecutor in a capital case I would argue the judge is not making a determination of fact but a determination of law, at worst mixed fact and law.

"That is what makes it arbitrary."

Under that definition every disagreement between human beings is arbitrary. You might as well just throw up your hands and quit if you believe that.


I simply think you are confusing the functions of the various branches of government. An activity that violates the equal protection clause of the Constitution for the legislature does not necessarily violate it for the executive. The legislature cannot pass a law denying the citizens equal protection; but that doesn't mean the executive can't do so on it's own independent initiative, which is what is happening here.

Let me ask you this question. When was the last time anyone won a case based upon selective prosecution? See, for example, United States v. Armstrong, 517 U.S. 456 (1996). What you really saying is that the case at hand violates the 14th Amendment because it selective prosecution. Nah, I'm not buying that. I simply don't think the 14th Amendment covers the executive in the sense you want it to.

Posted by: Daniel | Oct 18, 2009 2:26:54 PM

Daniel, it seems to me that you simply do not acknowledge the existence of Ring v Arizona. Please read part III of Justice
Scalia's opinion in Sattazahn v Penn. 537 US 101 (2003). "For purposes of the Sixth Amendment's jury trial guarantee, the underlying offense of 'murder'is a distinct, lesser included offense of 'murder plus one or more aggravating circumstances.' " at page 111.

What started this discussion is my statement that a prosecutor, in my opinion, may not decide in his discretion to try someone for the crime of murder plus one or more aggravating circumstances in the absence of a grand jury finding probable cause that the def committed that crime.

In other words, after Ring, death is not a more severe punishment for simple murder. Death is one of two punishments for the more severe crime of murder plus one or more aggravating circumstances. And if a grand jury returns an indictment which does not contain an allegation of an aggravating circumstance, the court has no jurisdiction to try the def for a capital crime.

How can you make the statement that the executive can't violate the equal protection clause in the face of the most famous equal protection case of all from San Francisco--Yick Wo v Hopkins? The Chinese laundry case.

thanks for the lively discussion.

bruce cunningham

Posted by: bruce cunningham | Oct 18, 2009 2:47:26 PM

Daniel, also, we're not talking about the selective prosecution of crimes. We are talking about the selective imposition of certain ranges of punishment. The selective application of the three strike law, which is not a crime.

Posted by: bruce cunningham | Oct 18, 2009 3:20:33 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB