Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

PROSECUTORIAL DISCRETION

Courts recognize a prosecutor's broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine695 and in part because "the decision to prosecute is particularly ill-suited to judicial review."696 In the absence of contrary evidence, courts presume that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner.697 So long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests within her discretion.698 A prosecutor has broad authority to decide whether to investigate,699 grant immunity,700 or permit a plea bargain,701 and to determine whether to bring charges,702 what charges to bring,703 when to bring charges,704 and where to bring charges.705

Although it is the prosecutor's prerogative to recommend leniency under the Sentencing Guidelines,706 exercise of this discretion is reviewable if based on an unconstitutional motive.707 Furthermore, the prosecutor does not have unreviewable discretion to impose or waive the enhanced sentencing provisions available under 18 U.S.C. 924(c)(1) by opting to charge and try a defendant in separate prosecutions or under a multi-count indictment.708

There are other limits to a prosecutor's discretion,709 and the judiciary has a responsibility to protect individuals from prosecutorial conduct that violates constitutional rights.710 Such conduct usually involves either selective prosecution, which denies equal protection of the law,711 or vindictive prosecution, which violates due process.712

Selective Prosecution. A prosecutor's decision to bring charges rarely violates the Equal Protection Clause. In Wayte v. United States,713 the Supreme Court held that to demonstrate selective prosecution a defendant must show that she received disparate treatment and that her prosecution was improperly motivated.714 Disparate treatment arises if others similarly situated are not prosecuted;715 improper purpose exists when selection is "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."716 Because courts presume that the government undertakes a prosecution in good faith, a defendant challenging an indictment on selective prosecution grounds bears a heavy burden of proving facts sufficient to satisfy these two requirements.717

To be entitled to discovery, which can help prove a selective prosecution claim, a defendant must meet standards that are nearly as rigorous as the standards required to prove the actual elements of a selective prosecution claim itself. In United States v. Armstrong,718 the Supreme Court defined the threshold at which a defendant is entitled to discovery to help prove a selective prosecution claim as "a credible showing of different treatment of similarly situated persons.719 Furthermore, in a motion for an evidentiary hearing, the defendant must establish a prima facie case of selective prosecution.720 Additionally, a defendant waives the defense of selective prosecution unless she properly raises it before trial.721 Vindictive Prosecution. A prosecutor's use of the charging process may violate due process if it penalizes the exercise of constitutional or statutory rights.722 If a defendant shows actual vindictiveness, she establishes a per se due process violation.23

If a defendant shows that the circumstances of her case so require, a presumption of vindictiveness may arise.724 A defendant has a greater probability of obtaining this presumption when the alleged vindictiveness occurs during or after trial than when it occurs before trial. In Blackledge v. Perry,725 the Supreme Court held that the Due Process Clause prohibits a prosecutor from bringing a more serious charge against a defendant who has pursued a statutory right of appeal from a conviction on a lesser charge for the same offense.726 Although the defendant in Blackledge did not show actual vindictiveness on the part of the prosecutor, the Court held that due process is offended by those possibilities of increased punishment that pose a "realistic likelihood of `vindictiveness.' "727 Thus, to ensure defendants are not deterred from exercising their procedural rights, courts recognize a rebuttable presumption of vindictiveness whenever prosecutors increase the number or severity of charges after the defendant has appealed her conviction.728 Only a showing of events that occur subsequent to the original indictment and that justify a reindictment will overcome this presumption.729

In Bordenkircher v. Hayes,730 however, the Supreme Court found no due process violation when the prosecutor threatened during plea negotiations to reindict the defendant on a more serious charge if the defendant refused to plead guilty to the lesser crime originally charged.731 Reasoning that the "State's unilateral imposition of a penalty upon a defendant who has chosen to exercise a legal right to attack his original conviction [is] `very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense,' ",732 the Court concluded that so long as the accused is fully informed of the terms of the offer,733 is free to accept or reject the offer,734 and is legitimately subject to the threatened additional charge,735 the danger of retaliation does not exist in a plea bargaining setting.736