prudent prosecutor, The

Some proposed reforms are substantive in recommending policies to be implemented instead of factors to be weighed. In recognition of the administrative context of plea bargaining, for example, Professor Lynch recommends new standards for prosecutors' dealings with defense attorneys.

Even if prosecutors are not subjected to a full range of administrative law restrictions, it is likely that some reforms involving greater formality of procedure could enhance the fairness of the process. In my view, the two strongest candidates for formal recognition involve greater discovery rights, and the formalization of the opportunity to be heard before prosecutorial decisions are made.141

Professor Gershman explains in this symposium that office policies and practices can encourage prosecutors to practice moral courage. "Moral courage" is the ability to perform the prosecutor's job properly - by prosecuting some cases and declining questionable cases.145 In contrast, office policies that focus on conviction statistics hinder just prosecution.146

Although numerous lists of standards have been provided over many years, it is still not clear how they are applied from office to office.

In effect, as the overbreadth of the formal substantive criminal law drives an increase in prosecutorial power, the resulting growth of prosecutorial authority will tend to increase pressure on prosecutors to develop internal administrative practices and standards for the exercise of discretion that will become a separate defacto substantive criminal law. The problem is that this body of law is largely unwritten and may vary from district attorney to district attorney, or even from individual prosecutor to individual prosecutor.147

Accordingly, offices need some kind of mechanism by which such standards will be enforced. The reader of these pages can agree that reading lists of factors is not likely to enhance good judgment.

B. ENFORCEMENT OF STANDARDS

1. MORE JUDICIAL REVIEW

[W]ith the promulgation of standards, judicial review could be limited to the issue of abuse of discretion, the defendant being required to make at least a colorable claim that his prosecution violated an established policy of the prosecutor. The court would consider whether the prosecutor's decision was in fact based on the standards and policies of the office or was motivated by extraneous factors. Normally, the court would not review the merits of the prosecutor's policy. Only in cases of the patent and complete absence of a relationship between a prosecutorial standard and a legitimate law enforcement objective would a court be authorized to invalidate the standard itself.148

In 1981 Professor Goldstein proposed a "common law of prosecutorial discretion" that would be developed by the courts in response to different fact-specific cases.149 Prosecutors would be held accountable for their decisions to charge or to accept a plea by explaining to the court how they met the common law standards.150 Another proposal recommended an administrative standard for plea bargaining, under which there would be "increased judicial review of the prosecutor's decisions with other administrative law techniques, such as the adoption of written guidelines and a requirement that the prosecutor justify his guilty plea concessions with statements of reasons."151