Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

697. See U.S. v. Gary, 74 F.3d 304, 313 (lst Cir.) (prosecutor entitled to threshold presumption that acted in good faith for reasons of sound governmental policy), cert. denied, 116 S. Ct. 2567 (1996); U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) (absent showing of "intentional and purposeful discrimination," good faith prosecution presumed); U.S. v. Redondo-Lemos, 27 F.3d 439, 444 (9th Cir. 1994) (judge must presume constitutionality of prosecutorial decisions).

698. Wayte, 470 U.S. at 607; see U.S. v. LaPorta, 46 F.3d 152, 161 (2d Cir. 1994) (decision to prosecute in prosecutor's discretion as long as probable cause exists); U.S. v. Esposito, 968 F.2d 300, 306 (3d Cir. 1992) (same); U.S. v. Carter, 953 F.2d 1449, 1462 (Sth Cir. 1992) (same); U.S. v. Davis, 15 F.3d 526, 529 (6th Cir. 1994) (same); Anderson v. County of Montgomery, 111 F.3d 494, 500 (7th Cir.) (same), cert. denied, 118 S. Ct. 371 (1997); U.S. v. Brown, 9 F.3d 1374, 1375 (8th Cir. 1993) ("[S]o long as the prosecutor has probable cause . . . the decision whether or not to prosecute . . . generally rests entirely within his discretion." (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978))).

The Department of Justice instructs its attorneys to commence prosecutions when they believe a federal offense has been committed and the evidence is sufficient to convict, unless: (1) there is no substantial federal interest in the prosecution; (2) the suspect is subject to effective prosecution in another jurisdiction; or (3) adequate alternatives to prosecution exist. Principles of Federal Prosecution, supra note 1, at 10.

The Department of Justice has adopted an internal practice known as the "Petite policy" under which the government will pursue a federal prosecution following a state prosecution for the same act only when there are compelling reasons and the prosecuting attorney obtains prior approval from the Assistant Attorney General. See Dual Prosecution and Successive Federal Prosecution Policies, UNITED STATES ATTORNEY'S MANUAL 9-2.142 (1980) (describing mechanics of Petite policy). The policy derives its name from the case that discussed such re-prosecutions, Petite v. U.S., 361 U.S. 529, 530-31 (1960) (per curiam). The "Petite policy" is discussed in detail in Dual Sovereignty in DouBLE JEOPARDY in this Part.

699. Compare U.S. v. Martinez, 785 F.2d 663, 670 (9th Cir. 1986) (court review of investigation limited by prosecutorial discretion), superseded on other grounds, 855 F.2d 621 (1988) and Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) (same) with U.S. v. Gordon, 817 F.2d 1538, 1540 (llth Cir. 1987) (court review of investigative and prosecutorial decisions proper when direct evidence suggests discriminatory policy focusing only on blacks in voter fraud investigations).

700. Compare U.S. v. St. Michael's Credit Union, 880 F.2d 579, 598 (lst Cir. 1989) (absent substantial

showing prosecutor abused her discretion, courts will defer to prosecutor's immunization decision); U.S. v. Burns, 684 F.2d 1066, 1077-78 (2d Cir. 1982) (absent discriminatory use of immunity to gain tactical advantage or to force witness to invoke Fifth Amendment privilege, prosecutor has discretion in granting statutory immunity to defense witness); U.S. v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991) (absent prosecutorial misconduct, prosecutor has "considerable discretion" to request or deny immunity for witnesses previously charged in, but dismissed from, defendant's indictment); U.S. v. Schweihs, 971 F.2d 1302, 1315 (7th Cir. 1992) (absent clear abuse of discretion violating Due Process Clause, prosecutor has discretion not to immunize witness despite defendant's need for witness's testimony about conspiracy) and U.S. v. Capozzi, 883 F.2d 608, 614 (8th Cir. 1989) (absent showing of prosecutorial misconduct, prosecutor has discretion in granting immunity to defense witnesses) with U.S. v. Angiulo, 897 F.2d 1169, 1191-92 (lst Cir. 1990) (court may order prosecutor to grant immunity or face judgment of acquittal when prosecutor's intimidation tactics cause potential witness to invoke Fifth Amendment and withhold exculpatory testimony).