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September 12, 2016

"Does the Supreme Court still believe in prosecutorial discretion?"

The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....

In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....

[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound.  The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions.  One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well.  If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.

September 12, 2016 at 08:33 AM | Permalink

Comments

You and me both could write a series of law review articles and as you know IANAL. In my view, the solution to the problem he raises is a fundamental re-conception of judicial review. For too long judicial review has been hemmed in by the need for a statutory or constitutional hook in order to decide a case. Yet prosecutors are members of the bar and thus officers of the court. This open up the possibility of reigning in abuses of prosecutor discretion based upon a court's *administrative function*. I firmly believe that if both district and appeals courts took their ability to engage in administrative review seriously Yates and Bond could have been decided without creating any statutory precedents whatsoever.

Posted by: Daniel | Sep 12, 2016 11:37:30 AM

The author of this piece writes that "overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well." And in a system where cases go to trial and charging decisions are challenged in open court, that may be the case. But with the great majority of cases being decided now by plea deal, broadly-written statutes encourage prosecutors to abuse discretion because they know that about 95% of the time, the person will be pleading guilty. Charging doesn't need to be based on reasoned judgment, or what a jury would find reasonable. It is just a bargaining chip.

Posted by: FormerDem | Sep 12, 2016 3:11:19 PM

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system.

Revealing--an ex-prosecutor thinks that how to ultimately resolve cases is the job of the prosecutor (judges and juries being ancillary support, I guess), and that a system of vague laws works hunky-dory.

Posted by: dsfan | Sep 12, 2016 10:27:43 PM

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