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February 2, 2005

Thoughts on regulating prosecutorial discretion

One of the many amazing lines in Judge Batallion's amazing Huerta-Rodriguez opinion (basics here) was the statement that "[i]n this court's experience, the Department of Justice does not always 'charge and pursue the most readily provable' (beyond a reasonable doubt) crime, especially in drug prosecutions, with the result of introducing more disparity in the system."  This assertion is especially interesting against the backdrop of the recent Comey memo (available here) which seeks to reiterate the prosecutorial obligation to pursue the most serious readily provable offense.  It also brings to mind the finding of the US Sentencing Commission in its 15-year report that "significant evidence" suggests that "presentencing stages, such as charging and plea negotiation, ... introduce disparity in sentencing."  (The full USSC 15-year report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)

Of course, those of us in the ivory tower have long spotlighted that the inevitability and non-transparency of the exercise of prosecutorial discretion may be the Achilles Heel of efforts to control sentencing disparities.  Helpfully, today I can report on two thoughtful efforts from the ivory tower to highlight possible ways to regulate the exercise of prosecutorial discretion.

First, my casebook co-author Ron Wright has posted a draft article on SSRN (which is to be published in the Columbia Law Review and flows from this recent conference) entitled "Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation."  The article's abstract and a download link is available here.  As the abstract explains, Ron's article examines "potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter."

Second, frequent FSR and blog contributor Mark Osler has written a piece for an upcoming symposium at Valparaiso Law School entitled "This Changes Everything: A Call For A Directive, Goal-Oriented Principle to Guide the Exercise of Discretion by Federal Prosecutors."  As Mark explains, the piece "recognizes the problem over-broad prosecutorial discretion in the federal system and proposes a solution:  That the Attorney General direct federal prosecutors to make discretionary choices from a single guiding principle."  Specifically, Mark's article, which can be downloaded below, suggests "that all discretionary choices be made with the conscious goal of reducing crime by focusing on the 'key men' amongst defendants, defining the key man as either a member of a crime network with special skills or a recidivist who poses a future danger."

Download osler_this_changes_everything.rtf

February 2, 2005 at 06:15 PM | Permalink


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Just about every objective person sees that this is a very serious problem and yet no one in government has done anything about it. I am glad we are finally beginning a call for change.

My two cents- how about a US Attorney commitment to truth and equal justice backed up by creating an independent review committee and submitting to regular and full disclosure to independent auditors/reviewers of cases resolved by either trial or plea agreement. 2)Making a committment to prosecute their own for evidence (under the preponderance standard of course) of coersion and misrepresentations to deprive a defendant of his/her constitutional rights and for violating the public's trust. 3)Strapping lie detectors to every "cooperating" defendant that will be testifying under a plea agreement. 4) And finally barring a US attorney from running for political office within three years of leaving his/her post just so we shut out these nasty and I'm sure, completely unfounded rumors that too many ambitious US Attorneys are using their power to gain recognition and to jump start their next big political career.

Just to help keep everyone honest-- Where can I sign up?

Posted by: NL | Feb 2, 2005 10:01:33 PM

I was drugged and raped in the city of San Francisco, CA. The DA is using prosecutorial discretion as the basis for not prosecuting the rapist, they say it is a "he said she said" case. Despite the physical evidence supporting rape (bruising and tearing of the vagina and anus). Aslo, there are two independent witness' to testify my intoxicated state shortly after the rape, in addition to my friends. I have exhausted every effort, through correspondence, to the DA, Govenor of San Fran, State Atty Gen. office, Senators and State Representatives. I beleive the Grand Jury should be utilized in cases such as mine. There is more to this case but I planned on being briel, any advise?

Posted by: Diane Cox Rosas | Dec 13, 2005 5:35:32 PM

I am a student in the process of obtaining my associates degree. I was told to write a paper on "prosecutorial disparity in sentencing" I came across your blog. I would like to share with you an excerpt from my paper. As I attempted to research "Prosecutorial Disparity in Sentencing" I continuously came across law organizations reviews of the problems caused by this 'Discretion'. Almost all of the reviews I scanned over claimed an increase of incarceration for minority's and a decrease for Caucasians, due to the practice of Prosecutorial Disparity. Some of the examples of illogical variations in imposed sentences for similar offences under similar circumstances were astonishing. The fact that a prosecutors own personal opinions and beliefs can so vastly alter the sentencing of a defendant/criminal, is appalling. The whole principal behind substantive law is "This is the definition of this offence and this is the penalty(s) for committing said offence". When prosecutors take it upon themselves to deviate from the proposed punishment it should be their responsibility to research case law of other matching crimes with similar circumstances and be able to justify why they are requesting less or additional punishment be imposed to the judge. It is unfair for two similar in social stature persons whom committed the same offence, under similar mitigating circumstances to receive completely different punishments. The range of imposable punishments set in substantive law is designed to allow for adjustments due to mitigating circumstances, such as violence, prior convictions, combination charges, etc.. The Department of Justice needs to revisit the ideal of controlling the amount of Prosecutorial Disparity allowed in the courts today.

Posted by: brian sciubba | Jun 5, 2006 7:42:58 PM

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