prudent prosecutor, The

Georgetown Journal of Legal Ethics, The, Winter 2001 by Griffin, Leslie C

decide to charge, even innocent defendants may feel compelled to plead guilty out of fear that a jury might convict them. "Although the defendant is innocent, that presents no problem with the bargained plea. The law, in its even-handed majesty, permits the innocent as well as the guilty to plead guilty in order to avoid the coercive threat of extended imprisonment."56

Plea bargaining discretion also undermines uniformity of pleas. Professor Zacharias has described the limitations of a discretionary standard in plea bargaining.57 He demonstrates that theories of plea bargaining (which vary from office to office) influence the outcome of the case. Zacharias recommends that prosecutors' offices establish more clarity and uniformity in these theories of plea bargaining in order to avoid unbridled discretion.58

4. SENTENCING

Charging decisions influence sentencing as well as plea bargaining. "While the formal act of sentencing rests with the court, a prosecutor's charging decisions very much will dictate what the judge's options are at the time of sentencing."59

Judicial discretion was the focus of the sentencing reform promulgated by the Sentencing Guidelines (Guidelines). Proponents of the Guidelines argued that judicial discretion over sentencing had led to inconsistent and sometimes arbitrary sentencing. The confinement of judicial discretion under the Guidelines has also enhanced the discretion of the prosecutor.60

discretion) has been significantly constrained. The remaining dragon (prosecutorial discretion), however, continues to roam the plain unrestrained.61

The prosecutorial dragon is unconstrained because power over sentencing enhances the prosecutor's power to charge and to plea bargain. The sentence is based on the charge and on the facts charged. Prosecutors gain more leverage in plea bargaining because judges usually cannot overrule the sentences.

Once the decision to prosecute has been made, prosecutors again wield great power in determining which offenses to charge. Although the U.S. Attorneys' Manual states that charging crimes to induce a plea is impermissible, defense lawyers accuse the government of "piling on" charges in order to induce plea agreements and cooperative testimony. By charging multiple offenses, a prosecutor exercises significant control over the sentence a defendant will receive if convicted ....

Perhaps the most significant result of a prosecutor's discretion in charging crimes is in the sentence. A former Assistant U.S. Attorney admitted that "a lot of prosecutors view [length of sentences] as their benchmark." He told of a prosecutor who is rumored to have a "thermometer" which "measures" his career total years of sentencing. Since the advent of the U.S. Sentencing Guidelines, which severely limit judges' discretion in imposing sentences, prosecutors may exert more control over a defendant's sentence than even the judge.62

Moreover, prosecutors control the relevant conduct portions of the Guidelines.63 Prosecutorial sentencing discretion is also evident in the substantial assistance provisions of the Guidelines. "Congress has authorized, and the commission has implemented, a system in which the determination of whether a `substantial assistance' discount is to be granted is left solely in the unreviewed discretion of the prosecutor. Its effect is to give to the prosecutor the sole key to leniency."64 Thus the prosecutor's discretion is central to decisions to depart downward under the Guidelines: