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prudent prosecutor, The
Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C
Charging discretion includes discretion not to charge. "Courts ... cannot review decisions not to prosecute; thus, prosecutors possess ultimate discretion with respect to declination decisions."84
There is disagreement about the efficacy of judicial oversight. Professor Uviller believes that the system can still catch the worst abuses of discretion.
[D]iscretion implies a large dose of deference in the judicial review of the executive choices. And that makes the bulk of prosecutorial charging decisions virtually unreviewable. But, significantly, it leaves the atrociously bad calls vulnerable. For asserted abuses of discretion, prosecutors remain answerable to courts.... Though rarely invoked, this oversight is a powerful constraint, particularly insofar as it carries the potential for public disgrace.85
Other students of discretion, however, always worry that "the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness."86 Some commentators see anarchy in the courts' limited review:
unreviewable discretion of the prosecutor. Even claims of selective enforcement are rarely successful. Attempts to convince prosecutors to publish the guidelines for making prosecutorial charging decisions, even in such prestigious studies as the ABA Standards for Criminal Justice Prosecution Function and Defense Function and the ALI's Model Code of Pre-Arraignment Procedure, have generally gone unheeded. When guidelines have been drafted, they have generally been so broad as to be of little predictive value.87
Such commentary explains why law professors write about "the preeminent role of the prosecutor"88 and conclude that the "prosecutor has been fairly described as the single most powerful figure in the administration of criminal justice."89
2. CONGRESSIONAL OVERSIGHT AND ELECTION
Legislatures pass the criminal legislation that is applied by prosecutors. They can repeal - or re-enact - anachronistic statutes. Congress passed the Guidelines in order to provide more appropriate limits to judicial discretion. Perhaps Congress could improve the broad array of criminal statutes, with an attempt to write "seamless, nonoverlapping" statutes.90
Legislation may place some limits on prosecutorial discretion, so that it is not unfettered:
support and defend the Constitution and thus establishes the duty to give due regard to the lawmaking function of the legislative branch and the interpretive function of the judicial branch. Therefore, the proper exercise of prosecutorial discretion must be guided by what Congress has ordained the law to be, informed but not dictated by the language of the statutes and their legislative histories as well as by the interpretation of the law by the courts. And, within these constraints, prosecutorial discretion must be exercised so as to promote and protect the public interest.91
Congress has used its investigatory powers to examine prosecutorial decisions by the Department of Justice, although they may be accused of politicizing prosecutions when they do so.92 Recently, Congress expressed its disapproval of Department of Justice prosecutorial ethics rules by passing the Citizens Protection Act ("CPA"), which requires federal prosecutors to comply with state bar codes.93"Congress has, until the CPA, never seen fit to involve itself in regulating legal ethics generally, let alone federal prosecutorial ethics. In part, this hesitation may stem from Congress' fear that entering the field will encroach upon the federal courts' realm of authority."94 Unfortunately, when Congress undertakes such regulation, its product may be "remarkably unclear" and "mask the complexity of the issues."95
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