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November 30, 2021

"Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System"

The title of this post is the title of this new paper authored by Anna D. Vaynman and Mark Robert Fondacaro now available via SSRN. Here is its abstract:

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process.  This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial.  The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. 

This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power.  Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows.  The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

November 30, 2021 at 12:06 AM | Permalink


That commentary got one thing right. Lack of balance is a problem. Prosecutors' offices seem to alternate between prosecutors who don't mind punishing the innocent and prosecutors who don't want to punish the guilty. Both are a recipe for disaster.

The right thing to do is to punish the guilty AND stop punishing the innocent. A radical thought that would save us from travesties like Adnan Syed, Sandra Melgar, and Daniel Holtzclaw in prison -- but Waukesha massacre suspect Darrell Brooks free to wreak mayhem. All of the above were caused by prosecutors who were out of balance one way or the other.

One suggestion missing from the article is to give some more power to juries by letting them know about and use their nullification power. Implementing this would be easy, and it should be done.

Posted by: William C Jockusch | Nov 30, 2021 12:34:30 PM

I can agree with most of that, but the problem is they are sending people to prison for drugs that people where never caught with, calling it conspiracy and sentencing longer than murderers, some even child killers ---THAT's A HUGE PROBLEM

Posted by: Randall | Nov 30, 2021 1:57:56 PM

Clark Neily, the very capable criminal law honcho at Cato, and I debated this quite interesting subject about a year ago. The referee was our mutual friend, Justice Clint Bolick of the Arizona Supreme Court. https://www.youtube.com/watch?v=3i92-ojQ8to

Posted by: Bill Otis | Nov 30, 2021 5:50:40 PM

Reading through the article, one thing that people who want to argue about trial penalties and the evils of prosecutorial discretion keep on missing is that prosecutorial discretion arises from the existence of different levels of an offense. My experience when I was working on a bar committee to rewrite my state's criminal code is that both sides agree with the basic principal that there should be different levels for offenses with different ranges of punishment.

To use a good example, my state -- like many states -- has a murder offense (knowingly kill) and a manslaughter offense (recklessly kill). Most people would agree that the range of punishment for murder (in my state, 10 years to life) and manslaughter (in my state, 3 years to 10 years) should be different -- that a person who only recklessly kills should not be facing the same sentence as someone who knowingly kills. But once you create that distinction, you create a trial penalty/plea bonus/a role for prosecutorial discretion. We want the prosecutor to file the right charge and make the right plea offer, but what the right charge and right plea offer is depends on the specific facts and evidence of the case. In other words, we want the prosecutor to exercise discretion. The perceived trial penalty comes from having a significant difference in the potential range of punishment but that significant difference is based on a fact (that the jury has to find at trial) that society has determined merits such a difference with the trial penalty coming from the willingness of the parties to agree on that fact only if they can reach a plea agreement but not if the case goes to trial.

Posted by: tmm | Dec 1, 2021 11:37:09 AM

Prosecutorial discretion let’s Hunter Biden get away with gun charges, FARA violations and tax evasion.

Posted by: Federalist | Dec 1, 2021 12:39:02 PM


Posted by: Federalist | Dec 1, 2021 12:40:18 PM

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