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April 17, 2012

"The Unchecked Charging Power of the Prosecutor"

The title of this post is the headline of this notable and lengthy new commentary by Radley Balko over at The Huffington Post.  Here are excerpts:

When Florida special prosecutor Angela Corey charged George Zimmerman with second-degree murder this week in the February shooting of 17-year-old Trayvon Martin in Sanford, the charge won praise from Martin's supporters and more skeptical reactions from some legal commentators.

The power prosecutors have to charge people with crimes is often overlooked.  While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor's wishes.  But without a grand jury, a prosecutor's charging power is entirely discretionary.

Once charged, a suspect often needs to hire expensive legal representation or, if he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender.  It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.

A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor's.  And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they're performing a prosecutor's duties, they can't be sued....

The American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, but if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction.  There's also no requirement that a prosecutor pursue evidence that may cast doubt on the suspect's guilt.  That means it is ethical for a prosecutor, according to the ABA, to ask a jury to pronounce a defendant guilty with a degree of certainty that the prosecutor may not possess himself....

One possible middle-ground solution might be for prosecutors to bring initial charges based only on probable cause, but to encourage a more stringent standard to bring a case to trial.  That would allow for an indictment and incarceration, or posting of bond to keep a suspect around while police and prosecutors attempt to collect more evidence....

Ultimately, the prosecutor is a political position.  Because no prosecutor has the resources to charge and try every crime, discretion over when to bring charges and for which crimes is a matter of policy.... Unless the voting public demands a higher standard for bringing serious charges, there's no incentive for prosecutors to impose such a standard upon themselves.

April 17, 2012 at 07:39 PM | Permalink


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Balko is a thoughtful commentator, and his commentary is provocative, but insightful.

Posted by: federalist | Apr 17, 2012 8:27:57 PM

I think there is a tendency to view the work of prosecutors through the lens of the "big case" and ignore all the day to day work that they do. As a voter, the only thing I can ask is that the prosecutor be consistent in his approach and then it's up to the public to decide if that fits with the outlook of the local community. So long as the lady is swinging at Zimmerman the way she would for any other person in the same situation, I have nothing to say about it,

Posted by: Daniel | Apr 17, 2012 9:39:22 PM

If tort liability arises out of duty, there are numerous duties of the prosecutor, enumerated in statutes, in the Rule of Conduct, the Rules of Evidence, the Rules of Criminal Procedure. Their violation makes any damage a result of negligence per se. Because of the harmful nature inherent in punishment, the sole tool of the law, the tort also qualifies for strict liability.

A brief list from 2007:


There should also be a duty to proceed with a validated prosecution, one validated scientific evidence. The victims of crime, or the estates should be able to sue the prosecutor for failure to prosecute as well as liability for a false prosecution.

Due to their immunity, granted by the Supreme Court, their profession has been an unmitigated disaster. They allow 90% of major crime to go unanswered. They have a guy; it is the wrong guy 20% of the time, including in spare no expense death penalty cases. They fail to protect the public. They make false accusations.

So what are they good at? Looking out only for themselves. They make the papers. They win at any cost. That is all they are good at.

Here is what is worse. 1) The smartest and most experienced person in the court is muzzled. If he seeks a fact based on extensive experience, he is removed from the bench and sanctioned. 2) Prosecutors are at will employees, subject to dismissal for no reason or even a corrupt reason. They have to obey the political hack favoring his contributors and keep quiet about it or lose their job and pension. 3) Prosecution offices draw people who cannot get any other job, including janitor of the court. So you are dealing with dimwits, doubly mentally crippled by their law school indoctrination into believing supernatural doctrines such as mind reading. Every element of a crime must be proven to have been intentional, in a drunken, impulsive criminal, often with no recollection of the crime. The Medieval Church ascribed this power to God in heaven judging the sinner after death. The criminal law is plagiarized from the Medieval Catechism, in violation of the Establishment Clause.

Posted by: Supremacy Claus | Apr 17, 2012 9:58:06 PM

Grand juries are one of the few “bill of rights” rights, like the second amendment, that don’t enjoy full 14th amendment incorporation, unlike say, the abortion right or the first amendment.

A requirement that every charge be brought by a grand jury would be a significant step in the right direction. As a practical matter, you would have many fewer charges if every charge required a grand jury indictment, and that’s even if the grand jurors were complete tools for the prosecutor, because each indictment would require much more time and effort to produce.

Another step would be to have Grand Jury prosecutors be from a separate office than the office which actually effects the prosecution and seeks the conviction. This would allow a much more objective reading of the facts both by the grand jury prosecutor and the grand jury since the grand jury prosecutor would not be incentivised by the need for a conviction but rather by the need for a credible prospect for prosecution.

Posted by: Jardinero1 | Apr 17, 2012 10:07:00 PM

Thanks for the great post its really very informative and helpful for those one who involved in this legal area.

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Posted by: Rick | Apr 18, 2012 3:25:17 AM

Jardinero1 --

The problem with requiring grand juries to bring every charge, including misdemeanors, is that, on account of economics, it would result in minor crimes going essentially unpunished. Is this what you want? Why?

We can't afford the system we have now because it's over-proceduralized. What we should do with minor crimes is hand out minor punishment, not none at all.

Posted by: Bill Otis | Apr 18, 2012 9:58:07 AM

Fewer laws and less charging

Posted by: beth | Apr 18, 2012 3:08:08 PM

Mr. Otis,

That all depends on your definition of crime and especially minor crime. Malum prohibitum like traffic crimes and even drunk driving could be handled administratively in the same way some localities handle parking tickets. Crimes like fraud can be handled as a civil matter. Drugs don't need to be criminalized at all. To the extent that drugs are used wrongly or abused there are other less expensive ways to handle that as well. Then there is theft, vandalism and malicious mischief; those should go to a grand jury. Then there are crimes of violence, those should go to a grand jury.

Posted by: Jardinero1 | Apr 18, 2012 3:41:38 PM

I would add that manslaughter and even second degree murder are actions that would be better handled as a tort claim against the agressor.

Posted by: Jardinero1 | Apr 18, 2012 3:44:19 PM

Jardinero1 --

"I would add that manslaughter and even second degree murder are actions that would be better handled as a tort claim against the agressor."

You're about to go on the Trayvon Martin bad list.

More seriously, you appear to have a very narrow view of the nature of criminal law. The unlawful taking of a life has been considered by every civilization I know about to be an offense against the community and not just the victim. Offenses against the community are what the criminal law was created to address.

Posted by: Bill Otis | Apr 18, 2012 3:54:02 PM

Mr Otis,

You are right, I have an extremely narrow view of the nature of criminal law. I don't believe in offenses against the community because the community is a mental construct. The community exists in our minds only, thus, there is no community to offend against. What you perceive as the community and what I perceive are surely two different things. It doesn't exist in reality. There are only individuals, nothing more.

This is why I characterize manslaughter and 2nd degree murder as being beyond the scope of criminal law. When you incarcerate and fine an individual for those offenses you provide no service to the victims or the victims families. The victims families are entitled to compensation for their loss. This is why such offenses against persons are better left as a tort claim. People who commit manslaughter and 2nd degree murder don't usually re-offend. Yet when you incarcerate an offender for manslaughter or 2nd degree murder you lessen the chance for recovery in a civil action for the victim's family.

Posted by: Jardinero1 | Apr 18, 2012 5:11:47 PM

Jardinero1 --

Just a couple of thoughts. First, I believe my concept of community is considerably more widely shared than yours, which is, if I am reading it right, that there is no such thing as a community.

Second, your view commits you to the proposition that there should be no criminal law at all, and that even first degree murder should not be criminalized. If it does not commit you to that conclusion, I hope you'll explain why not.

Posted by: Bill Otis | Apr 18, 2012 5:20:57 PM

The power isn't "unchecked" -- the article is interesting and all, but mistaken headlines is one of my pet peeves.

The discussion holds that the power is too broad. That is not the same thing as "unchecked." A judge has to agree to the information approach that takes place & Florida has a check in that the most serious crimes DO require a grand jury. In those cases, it is still "discretionary" in that the prosecutor can decide not to bring the case. Even the OP notes often the grand jury is a weak barrier.

As to finding evidence that might bring doubt to guilt, well, that is partially why we have a defense attorney on the other side. Any such evidence that is found that is of any force probably would have to be handed over. But, no, the prosecutor doesn't have the need or ability really to do everything.

Posted by: Joe | Apr 18, 2012 6:24:41 PM

Mr. Otis, I will qualify my prior statement. Communities exist in our minds and when we commune with others who feel likewise. I consider myself a member of several communities, to wit my church, my professional associations, my neighborhood association, my immediate and extended family, et al. The fellowship and kinship I feel of those communities is felt by others in the community.

Still, there is no analogous overarching community which is "offended by crime." None of the groups I commune with are served or derive any benefit by a manslaughter conviction or misdemeanor traffic ticket or a felony drunk driving conviction with their respective fines and incarcerations. I get nothing out of a manslaughter conviction except my pro-rata share of the bill. Individuals who are harmed as a consequence of those actions also get very little benefit from a conviction. Those who are harmed only benefit from a mea culpa and civil restitution, so I stand my ground with regard to manslaughter and second degree murder.

I make a distinction with first degree murder, because that requires a guilty mind. I would incarcerate those with a guilty mind for the simple reason that they consciously make themselves a hazard to others and should be incarcerated until they are committed to not being a hazard. Second degree murder and manslaughter are acts of stupidity and bad judgement. They are not acts which are likely to be re-committed and don't necessarily require incarceration. They do require restitution to those who are harmed.

Posted by: Jardinero1 | Apr 18, 2012 10:56:35 PM

"Unless the voting public demands a higher standard for bringing serious charges, there's no incentive for prosecutors to impose such a standard upon themselves."

Yet there are many prosecutors who require just that, proof beyond a reasonable doubt in order to file. My office is one of them, although I admit there have been cases filed on the existence of PC only. Usually gang cases where the public safety implications of no filing to wait for the investigation to be completed are high.

Balko makes some good points every once in awhile but in my experience he is often railing against prosecutorial (and police) practices that simply do not occur with any frequency.

Finally, the ABA has no persuasive value in prosecutorial circles, so to hold up the ABA rules as representative seems odd to me.

Posted by: David | Apr 19, 2012 12:47:30 AM

David: Are you an at will employee or civil service? Has any supervisor ever spoken to you about backing off a strong case or about pursuing a weak one for outside considerations?

Posted by: Supremacy Claus | Apr 19, 2012 7:11:51 AM

"That do not occur with any frequency" --- I beg to differ with you when this is standard operating procedure in counties like Maricopa County, Arizona. This should be a required case study course in all universities law schools, social justice schools and criminal law schools across the nation.

April 10, 2012 Judge's Ruling to disbar Thomas / Aubuchon and sanction Rachel Alexander

Presiding Disciplinary Judge > Video Page (archived links of all the disciplinary hearings, listen to Sept. 12, 2011 AZ Bar Attorney Gleason's opening statement against Thomas / Aubuchon / Alexander.


Posted by: truthseeker13 | May 29, 2012 1:38:58 PM

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