prudent prosecutor, The

(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;

(iv) possible improper motives of a complainant;

(v) reluctance of the victim to testify;

(vi) cooperation of the accused in the apprehension or conviction of others; and

(vii) availability and likelihood of prosecution by another jurisdiction.44

These factors point to the ambiguity of standards for discretion. As the text of the ABA standards states: "By its very nature, however, the exercise of discretion cannot be reduced to a formula. Nevertheless, guidelines for the exercise of discretion should be established."45

be sufficiently explicit to regulate prosecutorial discretion in fact-specific cases."47 A footnote explains the difference:

For instance, guidelines might establish the following policies: what possession charge to bring when a weapon is discovered in a home or place of business; what larceny charge to bring when the value of stolen property does not exceed a certain amount; when to upgrade an unlawful trespass into a burglary charge; when to charge an automobile theft as a felony rather than a misdemeanor. On the other hand, guidelines could not articulate how a prosecutor should weigh degrees of credibility or degrees of certainty, considerations which are often at the core of the prosecutor's charging decision.48

As Professor Levenson has explained, charging discretion is not formulaic, but instead requires prosecutors to fill in the gaps with their own judgment:

If deciding how to charge a case were as simple as reading a statute and deciding whether its elements might apply to the defendant's behavior, then new prosecutors who have demonstrated their academic acuity should be equipped to handle the task. Experienced prosecutors know, however, that the charging decision is much more complicated. The difficulty comes in evaluating those factors that are not defined by statute, including the severity of the crime, the defendant's role in the crime, the defendant's past and possible future cooperation, injury to the victim, complexity in trying the case and the likelihood of success. Prosecutors must be able to fill in these gaps in order to perform their charging functions.49

3. PLEA BARGAINING

Charging, plea bargaining, and sentencing are interrelated; discretion in each area reinforces discretion in the others.

Once again, in plea bargaining the ethical standard is not very restrictive.52 Officially, "[t]he prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense."53 Broad charging discretion and the low threshold for charging, however, give prosecutors extensive control over defendants' pleas. The probable cause charging standards:

do not clearly prohibit the prosecutor from deciding to charge an accused with offenses which the prosecutor has probable cause to believe are factually justified but which the prosecutor believes she probably will not be able to prove beyond a reasonable doubt at trial. ABA ethical standards specifically geared to the prosecutor's function discourage this type of overcharging, but they do not prohibit it. Similarly, a prosecutor who possesses enough admissible evidence to pursue successfully a prosecution on a certain serious offense against an accused but who nevertheless is willing to accept a guilty plea to a less serious offense is not proscribed by the ethical rules from charging the accused with the more serious offense to induce the defendant to plead guilty to the lesser offense. 54