prudent prosecutor, The

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

to the authorities. The prosecutor's decision is subject to review by the courts, but only if refusal to file a substantial assistance motion was based on an unconstitutional motive or not rationally related to any legitimate government end. Otherwise, it is up to the prosecutor to determine what serves a "legitimate government end." A prosecutor's decision as to whether to recommend a downward departure for substantial assistance is guided, in large part, by the prosecutor's personal evaluation of the defendant's assistance and its value to the prosecutor's case. This decision making process requires judgment judgment gleaned from a prosecutor's experience and good faith willingness to evaluate a defendant's attempt to provide cooperation.65

The legacy of the Guidelines for discretion is mixed, as they limited unwarranted judicial discretion but raised the specter of unlimited prosecutorial discretion. In their study of the implementation of the Guidelines, Schulhofer and Nagel describe an ambiguous legacy:

[T]he Guidelines have brought a degree of order and consistency to the prosecutorial charging and bargaining decisions that affect sentencing. Having noted this achievement, we nevertheless recognize that prosecutors exercise a considerable degree of sentencing discretion through charging and bargaining decisions. This discretion, if unchecked, has the potential to recreate the very disparities that the Sentencing Reform Act was intended to alleviate.66

They also conclude, however, that "[c]ontrary to the claims of many judges, the Guidelines have not transferred sentencing discretion from the court to the prosecutor."67

C. RESTRAINTS ON PROSECUTORIAL DISCRETION

The sentencing discretion debate is not new. Many commentators from past to present have argued that prosecutorial discretion is insufficiently restrained or even unrestrained.69 Even supporters of discretion acknowledge that too much of it is a bad thing. The critics have identified potential mechanisms of control, including judicial, legislative, and executive oversight: review by disciplinary agencies, intraoffice constraints (namely supervision and training, office policies, and budgetary restrictions), and election or re-election by voters who approve or disapprove of prosecutorial policies. There is much debate about the effectiveness of these mechanisms.70

1. JUDICIAL OVERSIGHT

Much prosecutorial discretion is unreviewed or unreviewable by the courts, unless the prosecutor violates specific constitutional provisions. Separation of powers leaves courts reluctant to intrude on executive decisions. As the Supreme Court explained in United States v. Armstrong:

The Attorney General and the United States Attorneys retain "broad discretion" to enforce the Nation's criminal laws. They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed."71

The Court acknowledged that prosecutorial decision-making may be beyond judicial competence and so worthy of deference: