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prudent prosecutor, The
Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C
can fill in some of the gaps. Consultation, supervision, and reporting requirements should be recorded. Failure to consult with peers or supervisors, or to seek review of discretionary decisions provides an identifiable basis for disciplinary sanction, one more enforceable than the post-trial standards of review employed in Agurs.
1. PROSECUTORIAL DISCRETION
Ethical codes and case law provide some mandatory norms for prosecutors. The exercise of discretion is also an important component of the prosecutor's job. Discretion is employed, for example, in the investigation of cases, in charging decisions, in plea bargaining, and in sentencing. Many commentators have concluded that the role of discretion in prosecution has expanded in recent years, as have the prosecutor's powers in the criminal justice system.18 Long before this expansion, however, the subject of discretion attracted extensive critical commentary and constructive suggestions for improvement.
A. WHY DISCRETION IS NEEDED
certain statutes would be anachronistic. "The need for discretion ... also arises because public attitudes change over time, and it is not always possible immediately to adapt the statutory law to these changes. The exercise of discretion may also function as an informal means of testing public reaction to a change in enforcement practice that may lead to legislative revision in the area."22
Second, even if it were a good idea to prosecute all violations of all criminal statutes, prosecutors cannot do so because of "limitations in available enforcement resources."23 Prosecutors do not have the ability to punish all crimes. Their budgets constrain their capacity to try cases and force administrators to develop policies that allow prosecution of some crimes but not others. Police resources, court schedules, and prison capacity may impose similar constraints.
Third, discretion is necessary because even the most detailed criminal statutes and office guidelines cannot codify every aspect of a prosecution. Individual discretion is required to determine how to apply laws and policies to the facts of the case. "The need for discretion arises in part because of the difficulty of encompassing within necessarily general rules the myriad circumstances that may be deemed relevant to a pending decision."24 For example, office policies can provide guidance about what crimes the office will prosecute, but cannot tell prosecutors how to weigh the credibility of witnesses and how to assess other facts of specific cases.25 These factual determinations will decide who will be prosecuted and what prosecutions will be declined.
offenders not be prosecuted.27 There are times when a rigid application of the rules may not do justice and when "flexibility" and "sensitivity" are necessary to a just outcome.28 This tension between rigorous enforcement of the general criminal laws and flexible adjustment to individual circumstances is a constant in discussions about the merits of prosecutorial discretion.29 Legislators and prosecutors are always striving to strike the proper balance. The following quotation summarizes the central aspects of that ongoing debate between rigor and flexibility:
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