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prudent prosecutor, The
Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C
The Justice Department has linked its ethical standards to the mandate to seek justice. "A variety of evidence suggests that, as a general rule, the Department of Justice takes its duty to serve justice to heart. Unlike most state and local prosecutors' offices, the Justice Department continually has developed published guidelines that reflect its understanding of prosecutors' duty to seek justice."135
For prosecutors, established standards of justice are preferable to the individual's application of her own sense of justice.
II. GOOD JUDGMENT
All prosecutorial discretion, not just investigation, requires improved standards, enforcement and good judgment.
A. STANDARDS
We have already seen that the ABA Standards for Criminal Justice and the United States Attorneys' Manual provide factors to guide prosecutorial discretion. I quote below a proposed set of administrative guidelines for prosecutors that would be overseen by courts of law. They are representative of numerous attempts to provide detailed criteria to guide discretion. The administrative criteria in,prosecutors' offices should include the following:
The basic standard should be whether in the prosecutor's judgment:
(1) a crime has been committed;
(2) the perpetrator can be identified; and
(3) sufficient evidence exists to support a verdict of guilty.
A second order of inquiry ... [is] whether the benefits [of prosecution outweigh the costs.] Matters pertinent to this determination include:
(1) the extent of the harm caused by the offense[J
(2) possible improper motives of a complainant;
(3) reluctance of the victim to testify;
(4) effect of non-enforcement upon the community's sense of security and confidence in the criminal justice system;
(5) the direct cost of prosecution in terms of prosecutorial time, court time, and similar factors;
(6) prolonged nonenforcement of the statute on which the charge is based;
(7) the availability and likelihood of prosecution and conviction by another jurisdiction;
(8) any assistance by the accused in the apprehension or conviction of other offenders, in the prevention of offenses by others, in the reduction of the impact of offenses committed by himself or others upon victims, and in engaging [in] any other socially beneficial activity that might be encouraged in others by not prosecuting the offender; and
(9) the effect of nonenforcement on police department morale.
[The third level is effect on the offender, including:]
(1) the impact of further proceedings on the accused and those close to him, especially the likelihood and severity of financial hardship or disruption of family life;
(3) the disparity of the authorized punishment in relation to the particular offense or offender;
(4) the seriousness of his past criminal activity which he might reasonably be expected to continue;
(5) the possibility that further proceedings might tend to create or reinforce commitment on the part of the accused to criminal activity as a way of life; and
(6) the availability of programs as diversion or sentencing alternatives that may reduce the likelihood of future criminal activity. 140
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