prudent prosecutor, The

as discretion is concerned, there are some things that police (collectively) are probably in the best position to decide. There are other things that ought to be left to the judgment of individual police officers. Striking some sort of balance between these two is one of the most problematic tasks for police policy makers.206

For the police, Professor Kleinig recommends that the discretionary labor be divided so that the greatest temptations can be avoided.

Prosecutors may be greatly tempted to become moral entrepreneurs, especially once they realize that their discretion is unreviewed and unreviewable. The prosecutor's "[e]thical considerations involve a sensitive appreciation that ... the ends of justice would be served by criminal prosecution, and that neither personal, political, discriminatory, nor retaliatory motives have influenced the charging decision."207 Moral entrepreneurs may mistakenly pursue their own personal, political, discriminatory or retaliatory agenda. Accordingly the first check on the prosecutor is to consult the policies developed by her office. Prosecutorial offices should limit entrepreneurs by developing specific office standards of discretion and mandating training, consultation, supervision and review.

The increased criminalization of conduct by the legislature has expanded the role of discretion in enforcing the law. In such circumstances, many prosecutors' offices already follow implicit or explicit policies. Yet "the fact of the matter is that we just do not know, in any systematic way, what kinds of standards are being used by our administrative adjudicators."208

involving greater formality of procedure could enhance the fairness of the process."210

Even published discretionary standards are insufficient to restrain moral entrepreneurs. Public moral judgment is developed through training by more experienced prosecutors and through consultation with peers and supervisors. Unfettered discretion is checked in offices where "the assistants shared a common perception of their role; each new assistant had been taught the standards for prosecution by the other, more experienced hands; assistants often discussed their decisions and asked advice of each other; and finally, prosecutorial decisions were constantly being checked by the litigative process."211 Accordingly, in all matters, prosecutors should test their judgment by consulting fellow prosecutors. In addition, "[iln any non-routine or high-profile matter, . . . the investigating prosecutor should seek supervisory review and approval of his or her proportionate evaluation before proceeding."212

Finally, "[m]eaningful control of discretion is impossible without at least some form of internal administrative review."213 Offices should conduct regular case reviews on discretionary matters. The consultation, reporting and supervision requirements should be recorded throughout the case file. The records will demonstrate whether consultation and supervision occurred.

For separation of powers reasons, courts will remain reluctant to police prosecutorial misconduct and abuse of prosecutorial discretion. It is often difficult for courts and investigators to determine the mental state of prosecutors, and so misconduct is undiscovered or undeterred. Disciplinary agencies can, however, fill in some of the gaps. Failure to consult with peers or supervisors, or to seek review of discretionary decisions, is more easily identifiable and reviewable than the mental state of prosecutors. The OPR reports, for example, illustrate that it is difficult to define good judgment but easy to determine (and to hold someone responsible) for failure to consult a supervisor or to gain approval from Main Justice.214