TAMING THE DRAGON: AN ADMINISTRATIVE LAW
FOR PROSECUTORIAL DECISION MAKING
P. BUBANY*
F. SKILLERNt
CHARLES
FRANK
When you get the dragon out of his cave onto the plain and
in the daylight, you can count his teeth and claws, and see just
what is his strength. But to get him out is only the first step.
The next is either to kill him, or to tame him and make him a
useful animal.'
The handling of recent criminal charges against high government officials has been a rude awakening to the American public. The typical
citizen's notion of the criminal process as an impartial adjudicatory system has been replaced by the image of criminal cases being settled in
smoke-filled rooms by deals between prosecutor and defendant.2 Demanding stiffer criminal penalties, a tougher attitude by courts toward
criminals, and fewer restrictions on law enforcement officers, 3 the public
now finds that, in the final analysis, enforcement of criminal laws in
*Professor of Law, Texas Tech University. B.A. 1962, St. Ambrose College; J.D.
1965, Washington University (St. Louis).
tProfessor of Law, Texas Tech University. A.B. 1964, University of Chicago; J.D.
1966, University of Denver; LL.M 1969, University of Michigan.
1 HOLMES, The Path of the Law, COLLECTED LEGAL PAPERS 167, 187 (1920).
2 Perhaps the most significant event in the increased public awareness of the role of
bargaining in the disposition of criminal cases was the controversial and highly visible
"deal" between the Department of Justice and the former Vice-President, Spiro T.
Agnew. Because of the case's notoriety, the Attorney General was forced to explain
publicly the basis of the Justice Department's decision to accept a plea of nolo contendere and to recommend leniency by the sentencing judge. In the aftermath of the Agnew
case, the subject of plea bargaining was discussed by the news media, see R. COHEN &
J.
WITCOVER, A
HEARTBEAT AWAY:
THE INVESTIGATION
AND
RESIGNATION
OF VICE
PRESIDENT SPmO T. AGNEW (1974), and public officials openly expressed concern over
the appearance of unfairness. See N.Y. Times, June 27, 1974, at 37, col. 1 (statement
by Attorney General Saxbe).
8 The penchant of politicans for using the law and order theme to woo the electorate
needs no documentation. Obviously, the popularity of a "get-tough" attitude is based
on the typical citizen's emotional reaction to crime and criminals. The problem of crime
and rising crime statistics is real, but the claim that the problem may be eliminated by
using the criminal process to conduct a war on crime is spurious. See generally F.
MILLER, PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME 42-57
(1969).
[473]
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
many cases may depend on the sole judgment of one person-the prosecutor.
The emergence of the prosecutor as the central figure in the administration of criminal justice has raised serious questions concerning his
power. The virtually uncontrolled discretion exercised by the prosecutor
has been a practically invisible, unexamined, and often ignored phenomenon. In recent years, however, the United States Supreme Court has
recognized the vast degree of discretion exercised in the criminal justice
system and, specifically, the critical function of the prosecutor in the
rough-and-tumble pre-trial bargaining process. Notwithstanding its qualified endorsement of the necessity of plea-bargaining to the criminal justice system, 4 the Court has evidenced a growing concern over the risks
of arbitrary decisions wherever they exist in the system5 and has shown
a tendency to require more specific standards for critical decision making
in criminal cases.' This judicial concern does not stand alone. Commentators have also examined prosecutorial discretion7 in keeping with the
growing interest in and increasingly empirical approach to the administration of criminal justice." Further, the traditional autonomy of the
4 In Santobello v. New York, 404 U.S. 257 1971), the Court, in upholding the enforceability of plea agreements by a criminal defendant, noted that the plea bargaining
"is an essential component of the administration of justice" and that "properly administered, it is to be encouraged." Id. at 260.
5A leading example is Furman v. Georgia, 408 U.S. 238 (1972),
in which the
absence of standards for imposition of the death penalty was the primary factor in
declaring capital punishment statutes unconstitutional. See Ehrhardt, Hubbart, Levinson,
Smiley, & Wills, The Aftermath of Furman: The Florida Experience, 64 J. CRIM.
L. C. & P. S. 2, 7 (1973).
6 A large body of precedent has been developed by the Supreme Court in recent years
that applies minimum due process standards of specificity to criminal statutes. See, e.g.,
Smith v. Goguen, 415 U.S. 566 (1974) (flag abuse); Lewis v. New Orleans, 415 U.S.
130 (1974) (breach of peace); Miller v. California, 413 U.S. 15 (1973) (obscenity);
Papachristou v. Jacksonville, 405 U.S. 156 (1972) (vagrancy). In Smith, the Court
concluded that "perhaps the most meaningful aspect of the vagueness doctrine is not
actual notice but the other principle element of the doctrine-the requirement that a
legislature establish minimum guidelines to govern law enforcement." 415 U.S. at 574.
The primary defect of overly broad criminal statutes is that their "standardless sweep"
permits selective law enforcement, and "allows policemen, prosecutors and juries to
pursue their personal predilections." Id. at 575.
7 See, e.g., Abrams, Internal Policy: Guiding the Exercise of ProsecutorialDiscretion,
19 U.C.L.A. L. REV. 1 (1971); Symposium-The Discretion of the Prosecutor in Criminal Procedure, 18 AM. J. CoMP. L. 483 (1970); Comment, ProsecutorialDiscretionA Re-Evaluation of the Prosecutor'sUnbridled Discretion and Its Potential for Abuse,
21 DE PAUL L. REV. 485 (1972). Two recent empirical studies of the prosecutor are L.
CARTER, THE LIMITS OF ORDER (1974); and Felkenes, The Prosecutor: A Look at
Reality, 7 Sw. U.L. REV. 98 (1975).
8 Most noteworthy is the American Bar Foundation's Survey of the Administration
of Criminal Justice in the United States, which culminated in the publication of five
important volumes compiling the results of a field study of practices at all levels of the
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
prosecutor in the day-to-day decisions of when and how alleged criminals
are charged and convicted has become a subject of concern, if not
alarm, on the part of the general public.'
Much of the current dissatisfaction with the criminal justice system
stems from the public's notion that it is not what a man has done, but
rather who he is or whom he knows, that determines his accountability
for criminal acts. Similar concerns exist among people subject to the
criminal process. Considerable evidence suggests that they feel they are
treated unfairly in relation to others similarly situated or that the system
has manipulated them. I0
Thus, fundamental reevaluation of the criminal justice system in relation to its objectives is needed if it is to be truly responsive to society's
needs. It is now generally acknowledged that the most important aspect
of the criminal process is the operational criminal justice system'"-the
informal and low visibility practices of the officials and agencies that
administer the system. 2 The higher profile of the prosecutor in that system makes it evident that any real reform must entail a close evaluation
of the role of the prosecutor and a determination of whether the role
should be reshaped by an administrative law for prosecutorial decision
making.
criminal process: R. DAWSON, SENTENCING: THE DECISION AS TO TYPE, LENGTH, AND
CONDITIONS OF SENTENCE (1969); W. LAFAVE, ARREST: THE DECISION To TAKE A
SUSPECT INTO CUSTODY (1965); F. MILLER, supra note 3; D. NEWMAN, CONVICTION:
THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL (1966); and L. TIFFANY,
D. MCINTYRE & D. ROTENBERG, DETECTION OF CRIME: STOPPING AND QUESTIONING,
-SEARCH AND SEIZURE, ENCOURAGEMENT AND ENTRAPMENT (1967).
Professor Miller's
book contains a comprehensive study of prosecutorial discretion and is recommended
for a fuller treatment of the practices discussed in this article.
9 See note 2 supra. "Criminal law is people's law . ..
" The lay public is able to
follow "the rational outline of the conduct of the trial" which provides "a sense of
security . . . that could never be provided by an expert operating in secret chambers or by little known formulas." Hall, Objectives of Federal Criminal Procedural
Revision, 51 YALE L.J. 723, 733 (1942).
10
THE PRESIDENT'S COMMISSION
ON
LAW
ENFORCEMENT AND
JUSTICE, TASK FORCE REPORT: THE COURTS 23 (1967)
COMMISSIONS:
11
F.
ADMINISTRATION
OF
[hereinafter cited as PRESIDENT'S
THE COURTS].
REMINGTON,
D.
NEWMAN,
JUSTICE ADMINISTRATION:
E.
KIMBALL,
M.
MATERIALS AND CASES
MELLI &
H.
GOLDSTEIN, CRIMINAL
46 (1969). The importance of this
part of the system is reflected in the vast number of dispositional decisions made at this
level without the safeguards which inure to the later stages of the criminal process.
Thus, the potential for abuse of the rights of the accused and the interests of the public
is greatest there.
12See THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
A FREE SOCIETY 7-12 [hereinafter
cited as PRESIDENT'S COMMISSION: CHALLENGE OF CRIME]; Goldstein, Reflections on
Two Models: Inquisitorial Themes in American Criminal Procedure, 26 STAN. L. REV.
1009, 1013 (1974).
OF CRIMINAL JUSTICE: THE CHALLENGE OF CRIME IN
THE AMERICAN CRIMINAL LAW REVIEW
I.
[Vol. 13:473
THE PROSECUTOR'S ROLE
The modem prosecutor has no counterpart at common law. 1 3 Although
writers disagree as to his origin, they generally agree that he surfaced on
the American scene early in our colonial period. 4 Connecticut passed
the first statute designating the duties of the prosecutor in 1704.11 This
law, later adopted in other colonies,"' expressly gave the power of prosecution on behalf of the state to the attorney general.' 7 Although the delegation to the prosecutor of the duty to enforce the laws may have been
relatively insignificant in 1704, today that duty is typically broadly defined as enforcing the laws of the state and initiating criminal proceedings on behalf of the state.1 8
However, notwithstanding the implication of most criminal codes that
the prosecutor has the duty to enforce all violations of the criminal law,
the prosecutor, in practice, has the freedom to decide which cases he will
prosecute.1 9 Thus, the office of the prosecutor, in effect, functions as an
13 See J. HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 174 (1950),
where Professor Hurst, in speaking of the prosecutor, states' "This office was an American creation. The English common law generally left the prosecution of criminal
offenses to the initiative of private persons immediately offended by the alleged violation
of law .... " See also Cooley, Predecessorsof the Federal Attorney General in England
and the American Colonies, 2 AM. J. LEGAL HIST. 304 (1958); Langebein, Controlling
ProsecutorialDiscretion in Germany, 41 U. CHI. L. REV. 439, 440-41 (1974).
14 See J. HURST, supra note 13, at 174; NATIONAL COMMISSION ON LAW OBSERVANCE
AND ENFORCEMENT, REPORT ON PROSECUTION 6 (1931); Note, Prosecutor Indiscretion:
A Result of Political Influence, 34 IND. L.J. 477, 479 (1959).
15 See Comment, The District Attorney-A Historical Puzzle, 52 Wis. L. REV. 125,
136 (1959).
16 1d. at 136-37.
17 This law went far beyond the prosecutor's duty in England; the English Attorney
General basically represented the state in actions in which the state was a party. But in
England criminal prosecutions remained in the hands of private barristers hired by the
complainant. See Langebein, The Origins of Public Prosecution at Common Law, 17
AM. J. LEGAL HIST. 313 (1973).
18 State v. Collins, 242 La. 704, 716, 138 So. 2d 546, 550 (1962), cert. denied, 371
U.S. 843 (1962); Baker, The Prosecutor-Initiationof Prosecution, 23 J. CRIM. L.C. &
P.S. 770 (1933); Baker & Delong, The Prosecuting Attorney and His Office, 25 J.
CRIM. L.C. & P.S. 695 (1934). See, e.g., ARIZ. REV. STAT. ANN. § 11-532 (1956)
which provides:
A. The county attorney is the public prosecutor of the county. He shall:
1. Attend the superior and other courts within the county and conduct,
on behalf of the state, all prosecutions for public offenses.
2. Institute proceedings before magistrates for the arrest of persons
charged with or reasonably suspected of public offenses when he has information that the offenses have been committed ....
19State v. Faught, 97 Ariz. 165, 167, 398 P.2d 550, 551 (1965); Friedman, Some
JurisprudentialConsiderations in Developing an Administrative Law for the Criminal
Pre-Trial Process, 51 J. URBAN L. 433, 440-41 (1974). In fact, complete enforcement
is not possible. Obviously all persons who commit crimes are not discovered, investigated, and apprehended. But even among those persons who are suspected to be crimi-
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
administrative agency. While an agency's mandate is usually a generallyworded statute concerning, for example, the economy, the prosecutor's
mandate is the jurisdiction's criminal code. Unlike that of many agencies,
however, the prosecutor's decision making is uncontrolled.
Perhaps the early and inauspicious beginning of the office of the prosecutor has enabled this "prosecutorial discretion" to elude the controls
that have evolved to restrict the powers exercized by other governmental
officials and bodies.2 0 Whatever the reasons, 2 ' the prosecutor now stands
as the single most powerful figure in the administration of criminal justice. 22
In his role as administrator, the prosecutor decides such diverse matters as what charge or charges, if any, will be filed, what penalty will be
sought, whether minor offenses will be prosecuted, and whether unpopular laws will be enforced. In a loose sense, every decision of a prosecutor
from purchasing equipment to hiring personnel to prosecuting a murder
nal law violators, the prosecutor does not proceed in all cases. See, e.g., Baker and
Delong, supra note 18; Cates, Jr., Can We Ignore Laws?-Discretion Not to Prosecute,
14 ALA. REV. 1 (1961); Hobbs, Prosecutor'sBias, an Occupational Disease, 2 ALA. L.
REV. 40 (1949); Note, Prosecutor'sDiscretion, 103 U. PA. L. REV. 1057 (1955); Note,
Private Prosecution; A Remedy for District Attorneys' UnwarrantedInaction, 65 YALE
L.J. 209 (1955). But see Caldwell, How to Make Prosecuting Effectual, J. AM. JUD.
Soc'y 73 (1932) where the author makes the idealistic statement of prosecutors: "Their
task is to enforce the law as they find it and institute proceedings to punish every man
who violates it. They have no discretion-no will of their own." Id. at 75.
20 The prosecutor, by developing early in our history, may have fortuitously remained
aloof from considerations as an administrator during the rise of administrative agencies.
After 1887, with the creation of the Interstate Commerce Commission (ICC), administrative law came into its own. Numerous agencies arose during the early twentieth
century until the present when decisions by administrators are commonplace. But during
this evolution, these agencies were restricted by controls from exercising absolute discretion. An agency is limited in jurisdiction and usually has statutory guidelines or
policy to implement. The Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C.
§§ 551-59, 701-06 (1970), was adopted in 1946 to provide review of, and control over,
discretion. The prosecutor's office was not considered an agency within the meaning
of the Administrative Procedure Act, and the courts have never considered the office
as falling within its provisions. The prosecutor, however, by this time was an established figure in our criminal justice system, and perhaps no one stopped to consider his
resemblance to these agencies and the virtually uncontrolled discretion which he does
utilize.
21 Langebein, supra note 13, concludes that the most significant factor that "has
brought about and sustained prosecutorial discretion in America in its present dimension has been the steady accretion of evidentiary and procedural safeguards for the
accused which has transformed jury trial and made the system of plea bargaining
essential." 41 U. CHI. L. REV. at 445.
22 One writer concludes that the American prosecutor has "a monopoly over the
criminal process." Langebein, supra note 13, at 440. But see Kaplan, The Prosecutorial
Discretion-A Comment, 60 Nw. U.L. REV. 174 (1965) (discussing internal review of
decisions within a United States Attorney's office). See also Snyder, The District Attorney's Hardest Task, 30 J. CRIM. L.C. & P.S. 167 (1939); Note, Prosecutor's Discretion,
supra note 19, at 1064-66; Note, Private Prosecution, supra note 19, at 211-15.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
case is discretionary. Not every decision the prosecutor makes evokes
criticism or concern,23 but only those that are more likely to result in
unfair or unequal treatment among individuals. 24 Those situations typically arise when the prosecutor has the freedom to choose between two
or more equally available courses of action dispositive of a given case
or cases.
25
A. Decision Whether to Charge
The prosecutor has a wide range of alternatives available to him in
dealing with persons suspected of violations of the criminal law. Initially
he has the power to decide whether or not to prosecute. At any time
after the initial charging decision the prosecutor may decide to modify
his original judgment to proceed further or to proceed in a different
manner, for example, by accepting a plea to a lesser charge. Even if he
decides either not to charge or to terminate formal proceedings after
charging, he may take action that is designed to result in non-criminal
sanctions or diversion to non-criminal agencies.
In making the decision not to charge or to terminate formal proceedings, the prosecutor purports to be rendering "individualized justice."2
28 Decisions that are not germane to a discussion of prosecutorial discretion include
financing, staffing, and, in some instances, evidence sufficiency and witness credibility
determinations. Those decisions usually depend upon technical factors peculiarly within
the prosecutor's expertise.
24 The mere fact that discretion exists does not mean it should be abolished. Discretion is necessary and beneficial to our system. See PRESIDENT'S COMMISSION: CHALLENGE
OF CRIME, supra note 12, at 133-34; Breitel, Controls in Criminal Law Enforcement,
27 U. CHI. L. REV. 427 (1960); Jackson, The Federal Prosecutor, 24 J. AM. JuD. Soc'Y
18 (1940); Wright, Duties of a Prosecutor, 33 CONN. B.J. 293 (1959). Even in a system of compulsory prosecution, some discretion is necessary. Hermann, The Rule of
Compulsory Prosecution and the Scope of ProsecutorialDiscretion in Germany, 41 U.
CHI. L. REV. 468 (1974). Discretion cannot, and should not, be eliminated completely.
Turning all discretion into law would destroy the individualizing element
of equity and discretion. Binding precedents may make for undue rigidity.
• . . Precedents have greater force in English courts than in American
courts, and we would lose much if our courts were to imitate the English
courts; we benefit by the flexibility which helps keep our law abreast of
changing conditions and new understanding.
K. DAVIS, ADMINISTRATIVE LAW TEXT § 4.05, at 99 (3d ed. 1972) [hereinafter cited as
DAVIS, TEXT].
25 K. DAVIS, DISCRETIONARY JUSTICE 4 (1969). Moreover, the courses of action do
not have to be valid in the sense that it is possible to carry them to their conclusions,
e.g., a decision to charge based on illegally seized evidence--even though the case
should not produce a conviction-is discretionary. F. MILLER, supra note 3, at 36-41.
"There can be little doubt that many serious fourth, fifth, and sixth amendment issues
are not being pocketed by the prosecutor in the plea bargaining process." Dash, Preface
to The United States Courts of Appeals: 1971-1972 Term Criminal Law and Procedure,
61 GEO. L.J. 275, 283 (1972).
26 LaFave, The Prosecutor'sDiscretion in the United States, 18 AM. J. COMP. L. 532,
534 (1970). For discussion of this basic premise of criminal dispositions, see Glueck,
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
Accordingly, he will consider a myriad of factors as they relate to two
basic standards: ( 1 ) the convictability of the accused and (2) the desir27
ability of obtaining a conviction vis-a-vis pursuing some other course.
In other words, the prosecutor determines not only whether he can convict, but also whether he should convict. The first determination is based
on the prosecutor's evaluation of the quantity and quality of the available
evidence and the potential for successful prosecution. The second is more
nebulous and is based on matters that are extraneous to the issue of
convictability. Generally it involves a determination of whether the benefits to be derived from prosecution of criminal charges are outweighed
by other considerations, such as the seriousness of the charge, the attitude of the complaining party, the age and status of the offender, the
severity of the potential punishment, public opinion, and prosecutorial
resources. Although the two determinations tend to merge in the actual
decision making process, the distinction must be drawn between prosecutorial decisions based on uncertainty concerning whether a conviction
could be obtained and those arising from doubts that "convictable" suspects should be fully prosecuted.2"
As recognized by the Supreme Court in Poe v. Ullman,2" the prosecutor's decisions on whether or not to prosecute effectively determine what
laws will be enforced. A demonstration of this selective law enforcement
was the refusal by Attorney General Jackson to prosecute two news
commentators under the criminal libel laws of Washington, D.C.-a decision publicly opposed by Senator Tydings during the confirmation hearings in the Senate on the nomination of Jackson as Associate Justice of
the Supreme Court. Jackson's decision not to enforce the statute was
based on the availability of civil remedies to the injured party. 31 While
such decisions reveal the extent of prosecutorial discretion and the lack of
Predictive Devices and the Individualization of Justice, 23
LAW & CONTEMP. PROB. 461
(1958).
27 F. MILLER, supra note 3, at 155; Comment, Diversion and the Judicial Function,
5 PAC. L.J. 764, 768-69 (1974); Note, Prosecutor'sDiscretion, supra note 19, at 1071.
28 Indeed, Professor Miller suggests that the tendency of the prosecutor to mix the
questions of evidence and discretion has obscured the extent to which discretion is exercised. See F. MILLER, supra note 3, at 154-57. The prosecutor prefers to rationalize his
decisions not to prosecute on the ground of lack of sufficient evidence because this
ground is less likely to be questioned.
29 367 U.S. 497 (1961). The Court recognized that the prosecutor may or may not
enforce certain laws. The petitioners in Poe sought a declaration that Connecticut's
statute prohibiting the sale or giving of medical advice on contraceptives was unconstitutional. The Court declined to decide this issue, citing the lack of a real threat of
prosecution. Id. at 508. The statute involved in that case had been unenforced during
the eighty years it was on the books. Id. at 501. But see United States v. Elliot, 266
F. Supp. 318, 325-26 (S.D.N.Y. 1967).
30Schwartz, Federal Criminal Jurisdiction and Prosecutor's Discretion, 13 LAw &
CONTEMP. PROB.
64, 83 (1948).
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
controls on that discretion, such selective enforcement of statutes does
allow law enforcement to be directed and adapted to the needs of the
locality.3 1
This adaptation of enforcement to local needs appears when the prosecutor uses his office to coerce compliance with the law. For example, the
prosecutor frequently serves informally as a collection agency by obtaining restitution on bad checks by notifying offenders that prosecution will
proceed if the money is not returned. 3 Likewise, when a wife complains
against her husband for failing to meet support payments, the funds may
be paid without formal prosecution, but with the assistance of the prosecutor.
33
B. The Decision What to Charge
By determining what proceedings, if any, will be initiated on behalf
of the state, the prosecutor, as an administrator, determines to a large
extent what sanctions will be imposed on a particular defendant.3 4 He
may select fewer than the maximum number of charges, or he may select
all possible charges. 35 In fact, in some cases he may add charges for
which evidence is weak to gain leverage in the bargaining process. 6 By
determining penalties on an individual basis the prosecutor, in effect,
31 See generally Breitel, supra note 24, at 31.
32 D.
NEWMAN, CONVICTION:
OUT TRIAL 163 (1969)
THE DETERMINATION OF GUILT OR INNOCENCE
WITH-
[hereinafter cited as NEWMAN, CONVICTION]. Cf. Baker, supra
note 18, at 776.
33 Further, in some states the prosecutor also controls the granting of liquor licenses.
See generally Baker & Delong, supra note 18. In others he has the duty of enforcing
the obscene literature statutes. See, e.g., COLO. REV. STAT. ANN. § 18-7-105 (1973).
Under the latter, removal of books from sale may be accomplished by letter to the distributor without a hearing. The threat of prosecution and its accompanying bad publicity inhibits the distributor from any action other than complying with the suggestions
in the letter, even if he believes he has not committed a violation. See HMH Publishing Co. v. Garrett, 151 F. Supp. 903 (N.D.Ind. 1957): "The prosecutor's action in
issuing a list of magazines that he considered to be pernicious was accompanied by an
implied threat of prosecution ....
[T]he prosecutor brought about a 'prior restraint' of
the circulation of the magazine." Id. at 905. However, the court found the prosecutor's
conduct "clearly beyond the scope of any authority given the prosecuting attorney" and
violative of Fourteenth Amendment due process rights. Id. at 904-05. For a discussion
of various non-criminal alternatives see PRESIDENT'S COMMISSION: THE COURTS, supra
note 10, at 8-9.
34State v. Faught, 97 Ariz. 165, 167, 398 P.2d 550, 551 (1965); See Baker & DeLong, supra note 18, at 788-90; Dash, Cracks in the Foundation of Criminal Justice,
46 ILL. L. REV. 385, 395-406 (1951); Wright, supra note 24; Note, Prosecutor's Discretion, supra note 19, at 1071 (selection avoids societal sanctions).
35He
also decides whether a guilty plea to a lesser charges will be accepted. Miller
& Remington, Procedures Before Trial, 339 ANNALS 111, 118-20 (1962). For a more
comprehensive and detailed discussion of reduced charges, see Newman, Pleading
Guilty for Considerations: A Study of Bargain Justice, 46 J. CRIM. L.C. & P.S. 780
(1956)
36See LaFave, supra note 26, at 541.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
assumes a legislative function: although the legislature has articulated
criminal standards and penalties by statute, the prosecutor is actually
engaged in rule-making.
An example of the prosecutor's flexible application of the criminal
code is provided by the policy toward narcotics offenders. Their goal
normally is to catch the "big fish" or supplier.37 As a result, the pusher
or the addict often will be charged with a lesser offense or the action
against him will be dismissed if he agrees to provide information to the
police. In a similar manner, vice crimes, such as prostitution and gambling, may in effect be condoned, partly because it is difficult to eliminate
them and partly because the minor penalties involved limit the effective38
ness of prosecution as a deterrent to those offenses in the future.
The decision whether to charge multiple offenses also enables the
prosecutor to influence what penalties will be invoked. If the prosecutor
believes the conduct was not serious, he can determine that the full sanctions of the law will not be imposed by filing only one of several possible
charges.
A similar result is reached through the prosecutor's manipulation of
a recidivist statute. By its use or non-use on a case-by-case basis, the
prosecutor regulates the conduct of the offender.3 9 In one case he may
believe a person is being punished adequately without the additional
charge and, thus, can return to society sooner. In another case, he may
consider the individual unfit to return to society and ask for the most
severe penalty, even though both offenders are equally liable under the
act.
C. The Decision How to Proceed After Charging
Most criminal cases are disposed of without a full trial 40 because most
prosecutors rely heavily on the leverage provided by their flexibility to
manipulate the charges and to influence the ultimate disposition of individual cases. 4 A majority of the cases are settled by bargained-for
37 See Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J; 543, 565-68 (1960);
Schwartz, supra note 30, at 84-85.
38 See Kaplan, supra note 22, at 182.
39 For a discussion of the use of habitual offender statutes, see
NEWMAN,
CONVIC-
TION, supra note 32, at 58n.3. See generally Baker, supra note 18. "It is within the ex-
clusive province of the district attorney, who is vested with full charge and control of
every criminal proceeding . . . to determine whom, when, and how he shall prosecute."
State v. Collins, 242 La. 704, 716, 138 So. 2d 546, 550 (1962), cert. denied, 371 U.S.
8434 0 (1962).
NEWMAN, CONVICTION, supra note 32, at 3; PRESIDENT'S COMMISSION: THE
CouRTs, supra note 10, at 9; Note, Guilty Plea Bargaining: Compromises by Prosecutors To Secure Guilty Pleas, 112 U. PA. L. REV. 865-66 (1964).
41 Note, PretrialDiversion from the Criminal Process, 83 YALE L.J. 827, 838 & n.59
(1974).
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
guilty pleas, 42 while other cases may be disposed of administratively,
either at the behest of defense counsel or at the prosecutor's own initiative, by diversion to non-criminal agencies or by informal quid pro quo
3
arrangements.1
Because the ultimate objectives of the prosecutor are to win cases
(or at least not to lose them) and to dispose of them quickly, 44 the reliance of prosecutors on plea-bargaining to short-circuit the formal
criminal process is not surprising. The bargain, not the formal proceedings, has in many offices become an end in itself. As a result, the
prosecutor often may not exercise any discretion whatever at the charging stage nor investigate the facts fully before charging. He may decide
only what charges are possible and await the inevitable plea negotiations
for hammering out the ultimate charges and recommended disposition.4 5
Herein lies the anomaly of prosecutorial discretion. Justified in the name
of individualized treatment, in practice the bargained-for settlement of
cases often is determined by factors unrelated to the objective of tailoring
a disposition related to the needs of the defendant, the interests of society, and the unique facts of the case.4
The prosecutorial practice of granting concessions, including dismissal
or reduction of charges, or agreeing to make recommendations concerning disposition in exchange for pleas of guilty, has been thoroughly discussed, criticized, and given a less than enthusiastic endorsement by the
United States Supreme Court.47 Attempts have been made to rationalize
the practice on the basis of the benefit to both the public and the individual. 48 Defendants allegedly are benefitted because they are relieved of
enforced idleness pending trial and of the risks and uncertainties of the
42NATIONAL
ADVISORY
COMMISSION
OF CRIMINAL
JUSTICE STANDARDS
AND
GOALS:
THE COURTS 42-43 (1973); [hereinafter cited as NAC: THE COURTS]; McIntyre & Lippman, Prosecutorsand Early Disposition of Felony Cases, 56 A.B.A.J. 1154, 1156 (1970).
43 AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE: STAN-
RELATING TO THE PROSECUTION FUNCTION § 3.8 [hereinafter cited as ABA STANDARDS: PROSECUTION FUNCTION]. Plea bargaining promises to remain a "vital part of
the criminal justice process under our system." JUSTICE IN SENTENCING: PAPERS AND
PROCEEDINGS OF THE SENTENCING INSTITUTE FOR THE FIRST AND SECOND JUDICIAL CIRCUITS 85 (L. Orland & H. Tyler eds. 1974) [hereinafter cited as JUSTICE IN SENTENCDARDS
ING]; AMERICAN
BAR
ASSOCIATION
PROJECT ON
STANDARDS
FOR
CRIMINAL
JUSTICE:
STANDARDS RELATING TO PLEAS OF GUILTY 1 [hereinafter cited as ABA STANDARDS:
PLEAS OF GUILTY].
44 For discussion of the prevalence of a "conviction psychology" in prosecutors, see
Felkenes, supra note 7, at 108-15.
45 NEWMAN, CONVICTION, supra note 32, at 79-8 1.
46 LaFave, supra note 26, at 532, 541-42, 546-47; cf. NEWMAN, CONVICTION, supra
note 32, at 76-77.
47 NAC: THE COURTS, supra note 42, at 42-45.
48 The claimed benefits of plea negotiation are summarized in NAC: THE COURTS,
supra note 42, at 45-49. See Santobello v. New York, 404 U.S. 259 (1971).
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
trial itself. The state, it is argued, benefits from a prompt and largely
final disposition of criminal cases, in part because shortened time between charge and disposition enhances the rehabilitative effect of the
ultimate sentence. Law enforcement and ultimately the public good are
promoted by the process because it encourages defendants to provide
information and otherwise to assist law enforcement officials. But the
primary justification for plea bargaining is system maintenance-the
necessity of its use if most criminal offenders are to be processed.49
II.
EXISTING LIMITATIONS ON PROSECUTORIAL DISCRETION
Numerous formal and informal controls exist, at least theoretically,
as limitations on prosecutors' powers. In general, however, they may be
characterized as largely ineffective and reflective of a traditional judicial
deference to prosecutorial judgment.
A. Legal Restraints
The extent to which prosecutorial decision making is subject to legal
restraints varies with the type of decision made and the point in the
criminal process at which it is made. Judicial involvement in the conduct
of a full-scale trial is a significant restriction on discretion because all
the substantive and procedural rules applicable to the trial of criminal
cases operate as checks on the prosecutor. The ultimate check, of course,
is the requirement that the prosecution prove, by means of legally admissible evidence, guilt beyond a reasonable doubt.50 In cases not involving a full trial but in which the disposition of the offender requires
the entry of a judgment by the judge, most notably on a guilty plea, the
court hearing provides restrictions, albeit of a much lesser degree. Still
fewer restraints exist at the pretrial stages at which the prosecutor determines to charge; and with respect to decisions not to prosecute, the
judgment of the prosecutor is virtually unrestricted.
Decisions to charge are subject to review in the pretrial phases of the
preliminary hearing and the grand jury proceedings which, in theory,
limit prosecutorial discretion by safeguarding against unfounded charges
or harassment. 51 Their effectiveness, however, is questionable. In practice, the right to a preliminary hearing often is either precluded by the
49
NAC:
COURTS,
supra note 42, at 47. "It appears that originally we built a system
of administration to make practical our cherished notions of justice. However, we are
no longer using the system for those goals, but rather for the maintenance of the system itself." Thomas, Plea Bargaining: The Clash Between Theory and Practice, 20
LOYOLA
L.
REV.
303, 312 (1974).
50In re Winship, 397 U.S. 358, 359n.1, 363-64 (1970).
51 See generally Miller & Remington, supra note 35, at 132.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
return of an indictment or waived by the defendant.5 2 Even when held,
the preliminary hearing is not a substantial check on prosecutorial discretion: the court usually favors the prosecutor, and, unless flagrant
abuse of discretion is shown, the defendant will be bound over for
trial. 3 In some states, and in the federal system, the prosecutor must go
before the grand jury to obtain an indictment to prosecute certain
crimes.5 4 With rare exceptions, the grand jury merely rubber stamps the
prosecutor's decision to charge because the proceedings are dominated
and controlled by the prosecutor himself. 5 Indeed, considerable evidence
exists that many of the proportionately few "no bills" returned by grand
jurics are actually sought by the prosecutor and obtained through his
presentation in the proceedings. 56 Thus, the preliminary hearing and the
grand jury generally affect only the manner in which the prosecutor ex57
ercises his discretion, not its extent.
Decisions either not to charge or to terminate prosecution, even after
grand jury indictment, normally will not be reviewed by the courts. A
recent example of an unsuccessful attempt to challenge a prosecutor's
decision not to charge is Inmates of Attica Correctional Facility v.
Rockefeller," decided by the United States Court of Appeals for the
Second Circuit. Plaintiffs attempted to bring a class action in the nature
of mandamus against various state officers, including prosecuting authorities, to compel investigation and initiation of prosecutions against state
officers alleged to have committed criminal violations of plaintiffs' civil
rights. The Second Circuit affirmed the dismissal by the district court of
the complaint against the United States Attorney on the ground that the
court did not have authority to review his decision not to prosecute.
52 Miller & Dawson, Non-Use of the Preliminary Examination: A Study of Current
Practices, 1964 Wis. L. REV. 252, 254-55.
5
3 See F. MILLER, supra note 3, at 83, 103.
54
FED. R. CRIM. P. 7(a) (all offenses punishable by at least one year's imprisonment); see Y. KAMISAR, W. LAFAVE, & J. ISRAEL, MODERN CRIMINAL PROCEDURE 865
(4th ed. 1974) noting that over half the states require indictments for felony prosecutions).
55 Campbell, Eliminate the Grand Jury, 64 J. CRIM. L.C. & P.S. 174, 178 (1973).
The prosecutor usually is responsible for calling witnesses and presenting evidence to
the grand jury. See People v. McPhail, 118 Colo. 478, 484, 197 P.2d 315, 317-18
(1948); Miller & Remington, supra note 35, at 123. In an interview on "Meet the
Press," NBC-TV, June 1, 1975, John Connally urged that the grand jury be eliminated
because it is :common knowledge that they are controlled by the prosecuting attorneys.
He stated that' 99% of the prosecutors believe they can obtain an indictment whenever
they please.
56 Campbell, supra note 55, at 178.
5T Appellate courts rarely review these pre-trial procedures, especially if sufficient
evidence of guilt has been produced to support a conviction. Invariably, the court will
hold that error, if any, was harmless.
58477
F.2d 375 (2d Cir. 1973).
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
After noting the traditional refusal of the courts to overturn the discretionary decision not to prosecute, the court stated that this refusal
was based primarily on the separation of powers doctrine. 59 The court
acknowledged that this broad view had been criticized as a non sequitur
exception to judicial review of the discretion of executive officers, but
justified it on the pragmatic ground of the incapacity of the court to review, particularly in the absence of standards governing review or "regulatory or statutory policies of prosecution." 6 0
The state courts have generally taken the same approach. For example, in Leone v. Fanelli,61 the Supreme Court of New York enunciated
the non-review doctrine when it refused to compel a prosecutor to institute criminal proceedings. Although the court found that by law the
prosecutor's duty was to prosecute crimes, the duty was one "calling
for the exercise of discretion and the pursuit of some fixed enforcement
policy which it is not the function of the courts to supervise"6 unless a
statute otherwise makes it mandatory.6 3
Theoretically, the courts in a number of jurisdictions have the authority to veto the prosecutor's decision to dismiss or enter a nolle prosequi,
at least when the crime must be prosecuted by indictment. For example,
Federal Rule of Criminal Procedure 48 (a) allows the United States Attorney to dismiss an indictment, information or complaint only "by
leave of court." While the federal courts generally have agreed that a
court may refuse to dismiss under this rule when it would result in harassment or prejudice to the rights of a defendant, they have been reluctant
59 Id. at 379.
60 Id. at 380. The court, in effect, concluded that it had no assurance that its decision
would likely be any more or less arbitrary than that of the prosecutor's. It stated:
On balance, we believe that substitution of a court's decision to compel
prosecution for the U.S. Attorney's decision not to prosecute, even upon
an abuse of discretion standard of review, and even if limited to directions that a prosecution be undertaken in good faith ... would be unwise.
Id. at 380-81.
61 194 Misc. 826, 87 N.Y.S.2d 850 (Sup. Ct. 1949).
62
1d. at 827, 87 N.Y.S.2d at 851.
63 Id. Nor can a citizen mandamus a state prosecutor to institute criminal proceedings, without a showing of bad faith or corruption on the prosecutor's part. See, e.g.,
Smith v. Superior Court, 101 Ariz. 559, 422 P.2d 123 (1967); Taliaferro v. Locke, 182
Cal. App. 2d 752, 6 Cal. Rptr. 813 (1960) (mandamus only if statute removes discretion); Lewis v. Lefkowitz, 32 Misc. 2d 434, 223 N.Y.S.2d 221 (Sup. Ct. 1961); Murphy
v. Summers, 54 Tex. Crim. 369, 112 S.W. 1070 (1908). The rationale underlying this
approach is expressed in Hassan v. Magistrates Court of New York, 191 N.Y.S.2d 238,
241 (1959), where in denying the writ of mandamus, the court said, "As a basic incident of our form of government . . . and as a self-imposed rule of judicial restraint,
the courts should not interfere with the discretion lodged in prosecuting officials ......
But cf. Graham v. Gaither, 140 Md. 330, 117 A. 858 (1922), where the court intimates
that mandamus may be available against police officers who corruptly refuse to enforce
a law.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
to hold that the rule confers further powers of review.64 Typical of the
courts' attitude is the decision in United States v. Cox,65 in which the
United States Attorney's refusal to prepare an indictment at the request
of the grand jury was upheld. The Fifth Circuit reversed the district
court's contempt citation of the United States Attorney on the ground
that his decision whether to initiate a prosecution was within the discretion of the United States Attorney, acting as an executive official, with
which the courts could not interfere. 66 More recently the Fifth Circuit
went one step further and held that the power of the prosecutor to dismiss
an already-initiated prosecution was nearly as absolute. In United States
v. Cowan,6" the district court had refused to grant a government motion,
negotiated by one of the defendants, to dismiss a conspiracy-embezzlement indictment in exchange for his testimony in another case. The district court judge concluded that he had the power under Rule 48(a) to
require the government to establish that the dismissal would serve the
interests of justice. Because the government did not establish to his satisfaction that the bargained-for testimony of the defendant was essential
to the prosecution of any other case and because of the seriousness of the
charges; the court denied the motion to dismiss. Aware of the practical
problem his decision had created-assuring vigorous prosecution in the
face of a possibly unwilling prosecutor-the district court judge appointed special prosecutors to continue prosecution of the case. On the
government's appeal of the order appointing the special prosecutors,6 8
the Fifth Circuit disagreed with the district court's interpretation of Rule
48 (a) that had necessitated the order. The court concluded that under
a proper interpretation of the rule the executive was "the first and presumptively best judge of whether a pending prosecution should be terminated" and that his judgment "should not be judicially disturbed unless
clearly contrary to manifest public interest."69 Under that standard the
district court was held to have abused its discretion in disapproving the
plea arrangement made in good faith and for reasons not clearly contrary to the public interest.
A final legal restraint on prosecutorial discretion arises, at least indirectly, from the court's role in the acceptance of a bargained-for guilty
plea.7" Because the existence of a plea arrangement with the defendant
64
See United States v. Cowan, 381 F. Supp. 214 (N.D. Tex. 1974).
65342 F.2d 167 (5th Cir.), cert. denied, 381 U.S. 935 (1965).
66
ld.
67381 F. Supp. 214 (N.D. Tex. 1974).
68 United States v. Cowan, 524 F.2d 504 (5th Cir. 1975).
69
Id.
70The judge is constitutionally required to determine whether a plea of guilty is
voluntary. Boykin v. Alabama, 395 U.S. 238 (1969).
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
may affect the voluntariness of the plea, the arrangement should be examined by the trial judge before whom the plea is entered. 7 ' In the past
judges and lawyers engaged in a pretense that plea negotiations had not
occurred prior to taking the plea in court, 72 but it is now well established
that an agreement between the prosecutor and the defendant will noi
necessarily invalidate a plea of guilty. 73 In fact, the proposed amendment
to Rule 11 of the Federal Rules of Criminal Procedure provides a specific procedure by which plea negotiations between the government and
defense attorney are to be approved. If a plea agreement is reached, "the
court shall require the disclosure of the agreement in open court at the
time the plea is offered," and the judge may either accept or reject the
agreement or defer its consideration.74 According to the rule, the plea
agreement is binding on the defendant only if it is accepted by the judge,
in which case the judge may not impose a sentence more severe than that
to which the prosecutor and defendant agreed.75 If the court rejects the
agreement, the defendant may withdraw his plea or take the chance that
the judge will impose a more severe disposition than contemplated by
the plea agreement.7 6
As is true of other legal restraints on prosecutorial discretion, Rule 11
may have little practical effect. The new rule has been criticized as
merely giving the judge veto power and, hence, not providing effective
supervision of the bargaining process.77 Because the judge is required to
determine only whether the bargain was entered into voluntarily, the rule
may have the effect only of increasing the visibility of the plea bargain.
Because of the lack of information or of an unwillingness to take the time
to obtain it, the judge may still be inclined to rubber stamp the nego71 If the bargain was induced by improper influences such as threats by the prosecutor, the plea of guilty could be voided. See JUSTICE IN SENTENCING, supra note 43, at
88.72
STANDARDS: PLEA OF GUILTY, supra
note 43, § 3.1, Commentary at 60-61.
73Santobello v. New York, 404 U.S. 257 (1971); Cortez v. United States, 337 F.2d
699 (9th Cir. 1964), cert. denied, 381 U.S. 953 (1965). The Santobello decision establishing the propriety of plea bargaining has led numerous state and federal courts to
require that plea arrangements be disclosed before a guilty plea is accepted by the
court. See, e.g., Bryan v. United States, 492 F.2d 775 (5th Cir.), cert. denied, 419 U.S.
1079 (1974); People v. West, 3 Cal. 3d 595, 477 P.2d 409, 91 Cal. Rptr. 385 (1970).
In Bryan, the Fifth Circuit en banc declared that all federal trial courts in its juri'sdiction should permit plea agreements and require full disclosure of their contents before
acceptance of the plea. The court noted that other federal circuits had taken such
measures to deal more effectively with post-conviction claims of broken bargains and
that the proposed Federal Rules of Criminal Procedure Rule 11 also mandated this
procedure.
74S. 1, 94th Cong., 1st Sess. R. ll(e)(2) (1975).
75 Id. § ll(e)(3), (4).
76 ld. § I1 (e) (4).
77 JUSTICE IN SENTENCING, supra note 43, at 85.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
tiated agreement without any independent review.78 Thus, neither Rule 11
nor existing legal restraints are likely to provide an effective limitation
on the power of the prosecutor in the negotiation and settlement of criminal cases.
B. Informal Controls
Prosecutorial practices may be influenced by the actual or anticipated
responses of individuals or groups who have an interest in, or are affected by, the prosecutor's decisions. Although their effect cannot be
measured precisely, the news media, judges, attorneys, other officials in
the system, private individuals, and public interest groups contribute,
79
to some degree, in shaping prosecutorial decision making.
Public opinion often is cited as the ultimate control on prosecutorial
decision making because the prosecutor, as a political official, must establish a good public record to be re-elected; but the significance of the
political process as a salutary influence on prosecutorial discretion is
conjectural. Rarely is the public aware of any activity of the prosecutor
other than in connection with sensational trials reported by the news
media."0 Additionally, prosecutors' policies are seldom publicized, elections are infrequent, and the voter's memory is short. Thus, public opinion may do little more than encourage the prosecutor to avoid bad publicity by maintaining a low profile and a high conviction record and by
8
refusing to prosecute influential citizens or enforce unpopular laws. '
Informal control over prosecutorial discretion may also result from
internal office policies. Prosecutors, particularly those in larger offices,
may establish express guidelines and procedures for the purpose of guiding subordinates and increasing the efficiency of the decision making
process.8 2 Additionally, if a customary pattern is pursued in all cases of
a certain type, the practice may crystallize into an office policy. The
prosecutor may follow a consistent practice or policy of non-prosecution
in certain types of cases, or, on the other hand, of a strict or complete
78 Judges themselves candidly admit the pressure to pass the buck in sentencing. See
id. at 50, 89.
79 See F. MILLER, supra note 3, at 337-44.
80
See Note, PROSECUTORIAL INDISCRETION: A RESULT OF POLITICAL INFLUENCE, 34
IND. L.J. 477, 483 (1959). See also Baker & DeLong, The Prosecuting Attorney: Pow-
ers and Duties in Criminal Prosecution, 24 J. CRIM. L.C. & P.S. 1025 (1934).
81 See generally Cates, supra note 19; Dash, supra note 25; Kaplan, supra note 22;
Kennedy, Local Politics v. Prosecuting Attorney, 23 J. AM. JUD. Soc'Y. 180 (1940).
82 See generally Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Dis-
cretion, 19 U.C.L.A.L. REV. 1 (1971). The Office of the District Attorney for the
County of Los Angeles is the leader in this regard. See Appendix to ABA STANDARDS:
PROSECUTION FUNCTION, supra note 43, at 135.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
enforcement in other kinds of cases. The effect of internally formulated
policies as a control is lessened because the policies of a prosecutor's
office are seldom formally articulated and rarely published.8" Moreover,
whether a defendant has a right to claim a breach of the organization's or
a customary rule of policy as a defense to a criminal charge has not been
settled. 4 Absent wider adoption of formulated policy and its publication,
this right on the part of criminal defendants likely will not be recognized.8 5
The trial judge may also informally affect the exercise of prosecutorial
discretion by his attitude concerning certain crimes"" or the disposition of
certain types of offenders. 87 Moreover, he may exercise a less specific but
more far-reaching influence by his general attitude toward the criminal
process. In the experience of the authors, ill-prepared assistant prosecutors with little knowledge of each case are commonplace phenomena,
particularly in run-of-the-mill cases and at the early stages of the proceedings. Only when a trial becomes imminent will the prosecution engage in much, sometimes feverish, activity. The trial judge may have a
considerable effect in either discouraging or reinforcing this approach. If
the judge views expedition of cases as his primary concern, he may not
require careful preparation by prosecutors in each case. If the judge,
however, prefers a reasoned disposition of cases rather than assembly-line
justice, the prosecutor will be forced to make more reasoned judgments
concerning individual cases, even at an early stage of the proceedings.
Thus, while the prosecutor is theoretically subject to a variety of formal
or informal controls over the exercise of his discretion, in fact, he typically
exercises unbridled discretion.
83 Abrams, supra note 82, at 25.
84 This problem was suggested by Redmond v. United States, 384 U.S. 264 (1966)
(per curiam). The Solicitor General moved that the lower court conviction be vacated
and the information against the defendants be dismissed. The grounds for the motion
were that prosecutions under the statute defendants had violated were not in accordance
with formulated policy within the Department of Justice. That policy was created in a
memorandum to United States Attorneys and provided that prosecutions under the
statute should occur only if aggravating circumstances were present. None existed in
the present case. The majority of the Court remanded and dismissed due to this breach
of Justice Department policy in bringing the prosecution in the first instance. See also
Petite v. United States, 361 U.S. 529 (1960) (government policy not to charge several
offenses arising out of one transaction violated). Whether or not the defendant has the
right to raise violations of established policy apparently has not been considered. It is
also unsettled whether the case should be decided on the merits or upon the motion
of the government or defendant. Petite v. United States, 361 U.S. at 533 (per curiam)
(Brennan, J., concurring), Cf. Young v. United States, 315 U.S. 257 (1942).
85 Abrams, supra note 82, at 41.
86 See F.
871d.
MILLER,
supra note 3, at 340-41.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
III. CONTROLS ON ADMINISTRATIVE DECISION MAKING
As attention has focused on the decision-making power of the prosecutor, a once almost solitary plea"' for controls has grown into substantial
support for an administrative law to regulate pre-trial prosecutorial procedures. Although disagreement exists concerning the nature and extent
of control that is desirable," all of the proposals that have been advanced seek to minimize the opportunity for abuse and to promote consistency and rationality in prosecutorial decision making. These proposals have drawn on administrative law measures currently used to control
the power and procedures of governmental agencies. A review of the
powers and controls over typical administrative agencies reveals a striking resemblance to the functions of the prosecutor's office, but an equally
striking dissimilarity in the degree of control.
Administrative agencies are non-judicial and non-legislative organs
of government which affect the rights of private individuals primarily
through adjudication and rule-making.1° These agencies perform an adjudicatory function by resolving disputes between parties," l and a regulatory function by overseeing activities within the scope of the functions
delegated to them by the legislature. 2 Incidental powers include investigating, advising, prosecuting, and supervising."3 The most potent power
of administrative agencies is probably their supervisory power,9 4 which,
in effect, entails the power to suggest to the regulated entity how it
88 That plea has been consistently voiced by Professor Kenneth C. Davis. See generally K. DAVIS, DISCRETIONARY JUSTICE, supra note 25.
89 See LaFave, supra note 26, at 539. Professor LaFave, an experienced student of
discretion in the criminal process, has suggested that the benefits of "a system of close
administrative review" are "not readily apparent." Id. Notwithstanding the disagreement,
"it is certain that some system which would insure uniformity of treatment in the
charging process should be devised." F. MILLER, supra note 3, at 350.
90
See DAVIS, TEXT, supra note 24, at § 1.01.
91 Id.
92 The Federal Communications Commission (FCC), for example, regulates the con-
tent of radio and television programs, and the Securities and Exchange Commission
(SEC) regulates the sale of securities by registration. The FCC also renews licenses
periodically for stations, approves modifications in hours and frequencies, and approves
transfer of ownership of a station.
9 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE [hereinafter cited as DAVIS, TREATISE]
§§ 3.01-4.12 (1958). For example, the Civil Aeronautics Board may study the frequency of flights, the number of passengers, and the demand for flights to determine
whether to allow a new airline to begin flights between two cities. The same investigatory power is available to the FCC in creating new radio stations in a city or assigning
frequencies.
94 For an analytical discussion of this power, including the use of letters, informal
stipulations, remission, mitigation, or compromise of penalties, see DAvIs, TREATISE,
supra note 93, at § 4.01-.12.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
should operate so as to avoid the agency's wrath in the future. This power
is utilized by all regulatory bodies and is an informal method of implementing their decisions"5 which avoids the judicial review that the
formal methods of regulation provide. 6
The necessary discretionary power delegated to administrative agencies
is circumscribed by various devices that confine, structure, and check its
use. 7 Discretion is generally confined by standards established either by
statute or through the agency's own rule-making authority. Additionally,
discretion may be structured by formalized procedures for decision making, imposed either externally or internally, explicit delegation of authority, and promulgation of policies. Finally, it is checked through a
review system, either within the agency itself or by an independent body,
often a court. The extent to which these devices exist as safeguards
against excesses or abuses in the decisions made varies from agency to
agency; the checks within the typical agency have been generalized; and
procedural problems, such as standing, 8 reduce their theoretical effectiveness.
It is also necessary to distinguish between discretionary decisions that
are peculiarly within the expertise of an agency and those decisions that
are not. This distinction is critical to the question of which agency actions will be subjected to review for abuse of discretion. 9 While courts
generally have been reluctant to review discretionary determinations
95 Id. at § 4.03. For example, in reviewing a station's license renewal application, the
FCC may direct suggestions concerning program content to the station. The station
normally will conform to the suggestion because it cannot afford to risk either the loss
of its license or bad publicity. The threat of bad publicity is especially effective with a
registrant under the Securities Exchange Act. The prohibition of sales under a stop
order from the SEC could be critical. Hence the registrant will submit to the relatively
minor inconvenience of conforming to the Commission's standards.
96 Id.
97 For a discussion of controls and checks on discretion, see DAvIs, TEXT, supra note
24, at § 4.08.
98 For a discussion of standing and the related problem of ripeness for review, see
3 DAVIS, TREATISE, supra note 93, at §§ 21.01-22.08.
99
The Supreme Court, in Moog Industries, Inc. v. FTC, 355 U.S. 411 (1958) (per
curiam), differentiated between discretionary decisions peculiarly within the expertise
of the agency and decisions subject to judicial review. In that case, a valid cease and
desist order of the Federal Trade Commission had been filed against the petitioner,
but not against its competitors who were engaged in the same practice covered by the
order. Petitioner sought to postpone enforcement of the order until its competitors were
also ordered to discontinue the practice. The Court said it would not interfere with
ancillary features of a valid commission order, because "in the shaping of its remedies
within the framework of regulatory legislation, an agency is called upon to exercise its
specialized, experienced judgment." Id. at 413. In this case, deciding whether to prosecute violators individually or as a group fell within this judgment, and the order had
to be enforced.
THE AMERICAN CRIMINAL LAW REVIEW
[Vol. 13:473
which require specialized knowledge and experience, 10 0 other types of
agency decisions have been held to be reviewable."'
Comparison of the powers and duties of the prosecutor's office and
the effect of its decisions on persons affected thereby with that of the
regulatory agencies illustrate the similarities of the organizations. Both
affect the rights of private parties and the public interest through the
exercise of discretion. However, the office of the prosecutor, in contrast
to the typical agency, is virtually unchecked. Public, standardized policies, internal review, and judicial review are not characteristic of the
prosecutor's office. Certain proceedings such as the preliminary hearing
or grand jury, both of which may have been intended to provide a review
of the decisions of the prosecutor, are ineffectual because of non-use and
dominance by the prosecutor.102 Controls are considered necessary in
the administrative field to ensure impartiality and fairness, but no such
controls limit prosecutorial power. Achieving impartiality and fairness,
however, is at least as important, if not more so, in the criminal justice
system.
IV.
THE DEBATE OVER UNCONTROLLED
PROSECUTORIAL DISCRETION
Defenders of the virtually uncontrolled discretion of the prosecutor
apparently assume that the present system is workable only because the
prosecutor's judgment is unhampered. 1 03 According to the defenders of
the status quo, broad discretion is necessary because of a growing crime
rate, limitations on available resources, and the need to individualize
justice.' Not only is the prosecutor viewed as being in the best position
to make judgments concerning individual cases, but no feasible alternative method has been developed. It is further argued that most of the
decisions of the prosecutor usually favor the defendant and therefore
need not be reviewed or controlled. Alternatively, if the public is the
aggrieved party, it can express its disapproval through the electoral
process.10
The argument that the decisions of the prosecutor usually favor a defendant overlooks the prosecutor's unique position to harass a defendant
10
DAvis, TEXT, supra note 24, at § 28.05.
101 See Note, The Special Prosecutor in the Federal System: A Proposal, 11 AM.
ClUm. L. REV. 577, 599-601 (1973).
102See notes 51-57 supra and accompanying text.
103 DAVIs, TEXT, supra note 24, § 4.09, at 121.
104 Friedman, supra note 19, at 441-44.
105 The illusory nature of this remedy is indicated in Note, Discretion and the Con-
stitutionality of the New Death Penalty Statutes, 87 HARV. L. REV. 1690, 1717 & nn.
182 & 183 (1974).
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
or otherwise misuse his discretion vis-'a-vis a defendant. Although the
prosecutor may dismiss charges, he also may file them in the absence of
sufficient evidence to convict or on the basis of illegally seized evidence.
From the start he has an advantage over the defendant in the ensuing
bargaining process, particularly in the case of the poor, less educated
defendant who knows whether he committed a certain act, but is unaware of the legal ramifications of his conduct. Of course, many decisions
by the prosecutor may be characterized as favorable to defendants. But
others could hardly be so labelled, for example, the decision to charge
one defendant when another found to have engaged in the same conduct
is released.
But the emphasis on whether decisions generally are favorable to defendants is misplaced. Focusing on only the prosecutor and the defendant
ignores the public's interest in having dispositions fit the offender and
the crime and in maintaining the concept of fairness underlying our system of justice. 10 6
A more abstract theoretical defense of uncontrolled prosecutorial discretion is the "separation of powers" notion that courts have employed
to support their policy of non-interference or non-review of prosecutors'
decisions,' 0 7 notwithstanding the basic premise of administrative law that
the mere delegation of authority to an agency, whether formal or informal, does not make its exercise unreviewable' ° However, in the context
of the admittedly administrative process of prosecutorial decision making,
the separation of powers concept finds favor apparently because of an
106 Unlike defense counsel, the prosecuting attorney's "client"--the public-is not at
his elbow nor is it normally aware of his decisions. Hence, he seldom must explain his
actions to his client. See text accompanying notes 80-81 supra. Nonetheless, the focus
on whether a decision is favorable does illustrate a shortcoming in how the system
works. It reveals the inherent unfairness in treating persons similarly situated differently.
Decisions made on an ad hoc basis without promulgated guidelines invite arbitrary
results and unnecessarily foster inequality and unfairness of treatment between individuals that is diametrically opposed to the objectives of our criminal justice system.
See generally Friedman, supra note 19. Another evil is that the prosecutor, particularly
when granting leniency, may be acting contrary to the public interest in vigorous prosecution, especially of "hardened" criminals.
107 See notes 58-63 supra and accompanying text. The rationale is similar to that
underlying the judicial reluctance to review the internal operations of prisons. Note,
Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints
of Convicts, 72 YALE L.J. 506 (1963). The mere fact that the prosecutor is an arm of
the executive is no real obstacle to review of his decisions is made clear by Professor
Davis. "If separation of powers prevents review of discretion of executive officers, then
more than a hundred Supreme Court decisions spread over a century and three quarters
will have to be found contrary to the Constitution!" K. DAvIs, DISCRETIONARY JUSTICE,
supra note 25, at 210. Whether judicial review is desirable or not should be determined
by a practical cost-benefit analysis. Abrams, supra note 82, at 51.
10 8
DAVIS, TEXT, supra note 24, § 28.02, at 509-510.
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underlying feeling that supervision of the internal operation of the office
will impair the prosecutor's ability to carry out its objectives. Further,
this judicial unwillingness to review decisions of the prosecutor seems to
be based in part on a judicial feeling of incapacity to appreciate the complex of factors involved in charging and prosecuting.
In light of the judiciary's willingness to review the prosecutorial decisions of administrative agencies, the lack of judicial expertise or competence with respect to prosecutorial discretion is anomalous. Moreover,
the obviously dispositional-type decisions made by the prosecutor in
charging, bargaining, and proceeding are presumably based on factors
identical to those considered by judges in sentencing; and the criminal
justice system is premised on the assumption that the judiciary is capable of making rational sentencing decisions. Hence, a court's willingness to defer to the prosecutor's decision could hardly be based on
any particular confidence in the prosecutor's expertise but on a judicial
feeling that, because of the inadequate information at its disposal for
decision making, its decision will be no better than the prosecutor's. 10 9
The justifications offered for allowing the prosecutor to remain free
of the restraints traditionally imposed on other administrative agencies
are not compelling. Present controls range from inadequate to nonexistent, and the opportunity for, and actual incidence of, arbitrary and
irrational decisions is excessive.1 1 As a result, the prosecutor can manipulate the system and its participants.
This is not to suggest that prosecutorial discretion either can or should
be abolished. The multifarious situations confronting the prosecutor from
day to day all cannot be anticipated or resolved in advance. Further,
109 Obviously, the whole business of fashioning appropriate dispositions of criminal
offenders is a highly subjective and undisciplined decision by whomever made, prosecutor or judge. Under a typical jurisdiction's sentencing structure and procedure, detailed
sentencing information may or may not be collected, but even when it is available,
there is no generally acceptable or agreed theory of punishment to apply nor alternative
treatment institutions available in which we have much confidence. As a result, the
rubric of "individualized justice" that is used to justify the wide range of potential
punishments, often becomes merely a euphemism for uninformed decisions concerning
the kind of man the offender is and how the public interest is best served in disposition
of his case. Doubts concerning competence in this area undoubtedly have contributed
to the judicial proclivity to "pass the buck" in sentencing. See Frankel, Lawlessness in
Sentencing, 41 U. CIN. L. REV. 1 (1972); Motley, "Law and Order" and the Criminal
Justice System, 64 J. CRIM. L.C. & P.S. 259 (1973). The dilemma of treating individuals
as "unique" while at the same time being "fair" is noted in Wilkins, Information Overload: Peace or War with the Computer, 64 J. CRIM. L.C. & P.S. 190, 193 (1973). The
author makes a disquieting point by indicating the impossibility of informed decisions
even by a "computer-judge."
110 See Note, Discretion and the Constitutionality of the New Death Penalty Statutes,
87 HAuv. L. REV. 1690, 1717n.184 (1974) and authorities cited therein.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
certain decisions properly fall within the unique technical expertise of
the prosecutor and are properly made by him."1 But absolute discretion
in determining whom to charge and selecting which laws to enforce is
undesirable because it tends to become a tool to achieve expediency at
the expense of justice.
Unfortunately, expediency seems to have become the primary objective
of the criminal justice system. Continued reliance on the good faith, competence, and judgment of the prosecutor to decide when and how persons are prosecuted reflects the desire to expedite the flow of cases
through the process." 2 So long as the aim of the system is the expeditious
processing of cases based on a formless mass of unidentifiable, unstructured, and virtually lawless decisions, there is little assurance that it conforms to our concept of fair and impartial justice.
The protections of our adversary system 1 3 cannot ensure consistency
and impartiality in the non-adversary milieu of the pretrial stages. 14
Equal justice and rational administration of the criminal law likely will
remain illusory until the decision making process is regularized and the
underlying bases of decisions identified. Only then can the public make
informed judgments concerning how the decision making process relates
to the purported objectives of the system.
V.
TOWARD A SYSTEM OF CONTROLLED PROSECUTORIAL DISCRETION
Proposals for formalizing controls over the pre-trial process are appearing with increasing frequency from respectable sources, notably the
American Law Institute" 5 and the National Advisory Commission on
Criminal Standards and Goals." 6 Outlined below is a proposal that is
to some extent an amalgamation of suggestions from various sources. It
contemplates a system with the following principal characteristics: (1)
111 See note 24 supra and accompanying text.
112 The present system is based on "routinized coordination," but with little communication among the agencies that administer it. "In a system in which the pressure from
the case flow is the most immediate concern, the desire for reform unfortunately tends
to become secondary to the hope of streamlining the system." McIntyre & Lippman,
supra note 42, at 1158.
113 See Burger, Paradoxesin the Administration of Criminal Justice, 58 J. CRIM. L.C.
& P.S. 428, 431 (1967), in which the present Chief Justice of the United States Supreme Court develops his idea that swift and efficient determinations of guilt are fundamental to our goal of rehabilitation. His idea may have been influential in recent decisions by the Court.
114 The pre-trial stages of the criminal process are basically "inquisitorial." See
Goldstein, supra note 12, at 1009. For suggestions that the adversary nature of the
criminal process is diminishing, see Dash, supra note 25, at 275, 283-84 (1972). Langebein, supra note 13, at 445-46.
115 AMERICAN LAW INSTITUTE MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE (Tent.
Draft No. 5, 1972).
116 See NAC: COURTS, supra note 42, at 17-94.
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published rules, guidelines, and policies; (2) established procedural safeguards within the prosecutor's office; (3) increased centralization of
prosecutorial power; and (4) limited administrative and judicial review.
The suggested changes would make the prosecutor's decisions more
rational, lessen the opportunity for abuse, and ultimately result in better
protection for defendants and the public alike. 11 7 These suggestions are
not intended to be all-inclusive nor a panacea for all the problems raised
by the issue of prosecutorial discretion, and the extent to which any of
the suggestions are implemented in a given jurisdiction must necessarily
depend on the response of state legislatures to specific changes. 118 The
suggestions, however, are intended to form the basis for change that is
generally feasible within the framework of the present prosecutorial system while alleviating some of its shortcomings.
A. Formulation and Promulgation of Criteria
The existence of standards for prosecutorial decision making is both
desirable and feasible." 9 Of course, the exercise of discretion can neither
120
be eliminated completely nor shaped precisely by verbal formulae.
Because of the complex of factors that a prosecutor might appropriately
consider in making certain law enforcement decisions, precise standards
may not be possible. However, guidelines consistent with those generally
thought to form the basis for existent but unannounced internal policies
and procedures in various prosecutors' offices can be made public. The
basic standard should be whether in the prosecutor's judgment: (1) a
crime has been committed; (2) the perpetrator can be identified; and
(3) sufficient evidence exists to support a verdict of guilty.
A second order of inquiry should address the question of whether the
benefits to be derived from prosecution or other action are outweighed
by its costs. Matters pertinent to this determination include: (1) the
extent of the harm caused by the offense (2) possible improper motives
of a complainant; (3) reluctance of the victim to testify; (4) effect of
non-enforcement upon the community's sense of security and confidence
in the criminal justice system; (5) the direct cost of prosecution in terms
117 For a discussion of how the computer may be used to achieve this goal, see
Hamilton & Work, The Prosecutor'sRole in the Urban Court System: The Case for
Management Consciousness, 64 J. CRIM. L.C. & P.S. 183 (1973).
118Further, finances and availability of rehabilitation facilities, for example, will
influence both the preciseness and the nature of controls on prosecutors' actions.
119 In fact, it is arguable that a public agency with powers as broad as the prosecutor
must act according to uniform, visible, and regular rules of law. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U.L. REV. 785,
813-14 (1970); Davis, An Approach to Legal Control of the Police, 52 TEX. L. REv.
703, 708-14 (1974). See also note 6 supra.
20
1
Davis, supra note 119, at 706.
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GUIDELINES FOR PROSECUTORIAL DISCRETION
of prosecutorial time, court time, and similar factors; (6) prolonged
nonenforcement of the statute on which the charge is based; (7) the
availability and likelihood of prosecution and conviction by another jurisdiction; (8) any assistance by the accused in the apprehension or conviction of other offenders, in the prevention of offenses by others, in the
reduction of the impact of offenses committed by himself or others upon
victims, and in engaging any other socially beneficial activity that might
be encouraged in others by not prosecuting the offender; and (9) the
effect of nonenforcement on police department morale. 2'
A third level of consideration is the probable effect of prosecution on
the offender. Relevant factors which here tend to individualize disposition of cases include: (1) the impact of further proceedings on the accused and those close to him, especially the likelihood and severity of
financial hardship or disruption of family life; (2) the effect of further
proceedings in preventing future offenses by the offender in light of his
commitment to criminal activity as a way of life; (3) the disparity of the
authorized punishment in relation to the particular offense or offender;
(4) the seriousness of his past criminal activity which he might reasonably be expected to continue; (5) the possibility that further proceedings
might tend to create or reinforce commitment on the part of the accused
to criminal activity as a way of life; and (6) the availability of programs
as diversion or sentencing alternatives that may reduce the likelihood of
future criminal activity.'22
The implementation of established rules and guidelines would have
several advantages. First, established standards would tend to minimize
the influence of non-objective factors. For example, the attitude of either
the arresting officer or complaining party is often a significant factor in
the prosecutor's decision.' 23 While the prosecutor should be responsive
to the police and the private citizen's complaint, the prosecutor's decision should be made independently and after consideration of factors
other than the complainant's attitude. The requirement of a reasoned
statement accompanying a screening decision would both limit this influence and assuage the potentially negative reaction of the complain124
ant.
121
ABA
122 Id.
STANDARDS,
PROSECUTION FUNCTION,
supra note 43, at § 3.9.
123 It has been suggested that many prosecutorial decisions are largely "reactive,"
that is, based almost solely on the decision of the police or a citizen that an individual
should be charged. See Givelber, The Application of Equal Protection Principles to
Selective Enforcement of the Criminal Law, 1973 ILL. L. FORUM 88, 115. The wishes
of the victim also may be a significant factor in the decision not to charge. F. MILLER,
supra note 3, at 173-78.
124 For discussion of reasoned statements see notes 129-30 infra and accompanying
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Second, the use of fixed rules and guidelines would facilitate informing the public. Only when the public knows the reasoning behind prosecutorial decisions, such as acceptance of a guilty plea to a lesser charge,
can it understand the prosecutorial function and evaluate the desirability
of existing policies and practices. 2 5 Since the office is a public trust, the
prosecutor should be subject to public scrutiny; only through public
awareness can the goals and purposes of enforcement be fully achieved.
Probably the major objection to publication of prosecutorial policy is
that deterrence will suffer if policies underlying selective nonenforcement become known.' Publicized policy would destroy what is left of
the myth that all criminal defendants are, ultimately, subject to the full
sanctions of the law. But this objection implies its refutation; it cannot
justifiably be claimed that the present system engenders great respect for
the law or confidence in its impartiality. Rather, it is becoming increasingly apparent that attempts by officials to perpetuate the illusion of
equal and full enforcement have had the counter-productive effect of
widening the credibility gap and increasing disillusionment with the
system. Persons subjected to the horse-trading atmosphere in the vast
number of cases in which there is no formal sentencing at all or in
which the disposition is predetermined by the bargaining process can
hardly be expected to come away with an attitude of respect for the law.2 7
Formalization of pretrial decision making and communication to defendants of factors controlling trial decision making and case dispositions should tend to increase their understanding and appreciation of
why they are being treated as they are. This, in turn, should enhance the
rehabilitative and deterrent impact of dispositional decisions.
These guidelines or rules cannot overcome all the practical problems
facing most prosecutors. A prosecutor may not be able to devote the
same amount of time to similar cases, he may not be able to see every
suspect personally, his office may be under-staffed, and he may lack the
necessary financial resources for equipment and additional staff. In situations involving heinous or sensational crimes, public opinion may mandate prosecution to the fullest extent possible, so that guidelines will be
largely irrelevant as the prosecutor's discretion will be limited thereby.
However, rules or guidelines may enable a prosecutor to quell con125 "Sunlight is a good disinfectant ..
" DAvis, TEXT, supra note 24, § 4.06, at 104.
Of course public opinion and rational law enforcement do not always coincide, but
visibility creates pressure to justify decisions that are contrary to public opinion.
126 See Abrams, supra note 82, at 25-34, for a thorough review of the arguments
favoring and opposing publication of prosecutorial policies.
127 H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 290-91 (1968); the prag-
matic "playing of numbers" to which the criminal accused is subjected is inimical to
the purported objective of promoting a feeling of remorse.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
troversy by adherence to the rules, for example, in the sensational case.
In that event all cases may be treated more alike, with the difference
coming from the public and media, not the prosecutor's office.' 28
Merely because the guidelines or factors that would be established
might be provisional or experimental does not lessen the need that they
be established. To insure that they are in fact established, their formulation and publication should be mandated, rather than simply encouraged.
B. ProceduralSafeguards: Screening, Diversion,
and Plea Negotiation
The existence of published policy or guidelines, even when specific,
does not necessarily result in fair and rational treatment. Not only is the
efficacy of standards limited by the inherent inadequacy of verbal formulae, but standards in themselves cannot ensure that administrative
power will be exercised consistently with them. The important consideration is "whether the procedure established for the exercise of power
furnishes adequate safeguards to those who are affected by the administrative action."'12 9 Absent such safeguards, arbitrary and discriminatory
action is too easily glossed by pro-forma statements that the particular
criteria have been "carefully considered" in reaching a conclusion, without explaining the result."' Hence, safeguards should be adopted at the
principal pretrial phases of prosecutorial decision making, namely,
screening, diversion, and plea bargaining.
1. Screening. The screening process has been defined as the unconditional exclusion of a person from the criminal process prior to trial
or plea.' The fact that large numbers of persons coming into contact
with the criminal process are screened out without either formal or in128 Resolution of some of these problems requires aid from the legislature through
necessary funding. The common objection to change in the criminal process is limited
resources. Part of the answer to the objection is that the present system has little to
commend it under a cost-benefit analysis. One could well ask how much of the huge
expenditure of time, talent, and dollars is devoted simply to system maintenance, that
is, perpetuating the illusion of rational enforcement. Change from the status quo might
not require additional resources, but merely a reallocation of existing resources. See
Hamilton & Work, supra note 117, at 186-88. Moreover, an administrative law that
required more informed and speedier decisions could have numerous indirect benefits,
such as reduction of the waste involved in post-arrest incarceration. Of course, if a
change is badly needed or constitutionally required, the resource insufficiency argument
will fail. See Gates v. Collier, 489 F.2d 298 (5th Cir. 1973), reh. en banc granted, 500
F.2d 1382 (1974), (overhaul of Mississippi state prison required). See also Note, The
Function of the Preliminary Hearing in the Federal Trial Procedure, 83 YALE L.J. 771,
796 (1974).
129Warren v. Marion County, 222 Ore. 307, 314, 353 P.2d 257, 261 (1960).
130People v. Felds, 391 Mich. 206, 233, 216 N.W.2d 51, 61 (1974).
131
NAC:
COURTS,
supra note 42, at 17.
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formal action should be openly acknowledged, and procedures should be
adopted to regularize the screening decision. On the premise that guidelines will be promulgated concerning the factors to be considered,1 32 the
prosecutor should be required to prepare and keep a written record of
supporting the ultimate disposition
the factors considered and of reasons
13
of a defendant taken into custody.
One promising suggestion for supplementing the screening decision is
the screening conference in which the defense counsel meets with the
prosecutor to discuss disposition of the case prior to charging. 13 4 The
purpose of the conference is "to apply pressure for early disposition, for
visibility and equal treatment in the exercise of discretion, and for the
making of informed decisions at the earliest stages of the process."'133 The
procedure would aid the prosecutor's exercise of discretion by enabling
defense counsel to generate information for the screening decision. Although neither the prosecutor nor the defendant would be bound to make
any choices at this stage, the exchange of information could result in
agreements that would dispose of the case immediately.
2. Pretrial Diversion. The increased visibility of the prosecutor has
resulted in popularizing the term "pretrial diversion," which describes
the practice of channeling criminal offenders into non-criminal programs
through a type of informal probation. 1 6 In some instances, particularly
first offenders of drug-related offenses, diversion has been formalized into
statutes.1 7 Typically, a drug offender may agree to participate in a rehabilitation program instead of being subjected to formal criminal proceedings. Moreover, such a program often provides for investigation of
the accused by the probation department 138 and a court hearing to de132 See notes 119-22 supra and accompanying text.
133 NAC: COURTS, supra note 42, Standard 1.2.
134 See ALI MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE art. 320 (Tent. Draft
No. 5, 1972).
185 Id., Introductory Note at 14.
136 NAC: COURTS, supra note 42, at 27; see generally Note, Pretrial Diversion From
The Criminal Process, 83 YALE L.J. 827 (1974).
137 California, for example, has a formal system of diversion in lieu of prosecution
for drug-related offenses. CAL. PENAL CODE §§ 1000-1000.4 (West Supp. 1974). For
discussion of this program see Comment, supra note 27; Note, Diversion of Drug Offenders in California, 26 STAN. L. REV. 923 (1974). Other formalized programs are
springing up throughout the country. See, e.g., Peterson, The Dade County Pretrial Intervention Project: Formalization of the Diversion Function and Its Impact Upon the
Criminal Justice System, 28 U. MIAMI L. REV. 86 (1973).
138 CAL. PENAL CODE §§ 1000-1000.4 (West Supp. 1974). Where not coupled with
referral for the treatment of an evaluation of the need for treatment, "traditional diversion is more aptly described as reversion to whatever status or condition preceded (and
perhaps inspired) the criminal act in the first place." Peterson, supra note 137, at 89.
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GUIDELINES FOR PROSECUTORIAL DISCRETION
termine whether diversion will be ordered and under what conditions."8 9
However, even where codification has replaced the traditionally informal
procedures, such codification often provides the prosecutor with discretion over the initiation of diversion proceedings and may, in effect, exercise a veto over a court's determination that an accused is a proper
subject for diversion. 4 '
Because diversion, as a type of informal probation, enables the prosecutor to extort from defendants agreements to potentially onerous conditions,"' it should be formalized and restricted. Standards should be
developed establishing the types of cases for which diversion may be
considered and procedures for approval of the diversion decisions. When
the diversion decision involves a "significant deprivation of an offender's
liberty," it should not become effective until approved by the court after
a hearing. 142 If the prosecutor decides to reinstate the prosecution suspended by the diversion program, the defendant should be allowed to
challenge the decision in court. 143 Whenever the prosecutor decides not
to divert a defendant who comes within a category normally considered
for diversion, he should be required to prepare and keep on file a written
44
statement of reasons for his decision.1
3. Plea Bargaining. Plea bargaining is a particularly controversial
area of prosecutorial discretion. It has been recommended that this practice be phased out of the criminal justice system.' 4" This recommendation
is consistent with proposals for standards in charging and pretrial diversion of criminal cases. If eliminated, the prosecutor would be required to
decide when and how to enforce violations independently of the bargaining process, and disposition plans would have to be prepared early in the
189 CAL. PENAL CODE §§
0
1000.1-.2 (West Supp. 1974).
14 1d. at § 1000.2. In other words, formalized diversion, although specifying by
statute the requirements for eligibility, does not eliminate prosecutorial discretion to
initiate the diversion proceedings.
141 Formalization is also a protection of the public interest in vigorous prosecution
when warranted. It can avoid all cases being diversion proceedings.
142 NAC: COURTS, supra note 42, Standard 2.2. See also ALI MODEL CODE OF PREARRAIGNMENT PROCEDURE § 320.7 (Tent. Draft No. 5, 1972).
148 ALI MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 320.9 (Tent. Draft No. 5,
1972). § 320.9(1) provides for notice and informal administrative review. § 320.9(2)
provides for limited judicial review of adverse rulings for reversible error either where
the record does not support the determination to reinstate prosecution or where the
prosecutor has not complied with § 320.9(1).
144 NAC: COURTS, supra note 42, Standard 2.2.
145 Id. Standards 3.1, 3.41. The National District Attorney Association recently voted
unanimously to reject the Commission's proposal. 16 CRIM. L. RPTR. 2427 (1974).
This recommendation is consistent with its proposals concerning the promulgation and
enforcement of standards in charging and pretrial diversion of criminal cases.
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process. Thus formulated, the plans should correspond closely to what
14 6
the prosecutor reasonably thinks he can and should get as a result, and
the practice of padding the charges for leverage in bargaining would be
eliminated. 14 7 Moreover, decisions concerning leniency in exchange for
cooperation would similarly have to be decided before or at the time of
charging, because only in exceptional situations would a plea to a different charge be allowed after the initial charging decision.14
However, the present criminal justice system is geared to and is dependent on the negotiated guilty plea. 149 As long as this is the case, attempts should be made to make the bargaining process more responsive
to the needs of society and individual criminal defendants. 150 These attempts should be directed toward the major defect in the process as now
generally conducted, that is, its failure to achieve dispositions that consistently bear any reasonable relationship to any legitimate objective of
criminal justice administration. Recent innovations, such as disclosure
of plea arrangements to the judge at the time of entry of the guilty plea,15'
have the potential of greater rationality in the bargained dispositions.
Additional procedures should be adopted, however, to ensure that disposition is in fact the product of shared responsibility between prosecutor
and judge."' Requirements that the bargaining decision be made on the
153
basis of considerations similar to those utilized in the screening process
and that a complete file be presented to the court when it is asked to
approve the agreement could result in necessary judicial involvement
without coercion. The judge could then make an informed judgment of
the propriety of the bargain.
C. Centralization of ProsecutorialResources
The traditional view that prosecutorial decisions are best made at the
local level has continued to5 4 thrive, proposals for centralization at the
state level notwithstanding.
146 NAC: COURTS, supra note 42, Standard 3.1, Commentary at 47.
147 See notes 34-39 supra and accompanying text.
148 NAC: COURTS, supra note 42, Standard 3.4.
149 Id., Standard 3.1, Commentary.
150 See note 113 supra.
151 See notes 70-76 supra and accompanying text.
152 Of course, judicial involvement in the bargaining process is a controversial matter
because of the fear of creating even the appearance of coercion by the judge. Lambros,
Plea Bargaining and the Sentencing Process, 53 F.R.D. 509, 513-14 (1971).
153 See notes 131-35 supra and accompanying text.
154 See F. MILLER, supra note 3, at 322-27, for a survey of the arguments favoring
and opposing centralization.
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GUIDELINES FOR PROSECUTORIAL DISCRETION
Centralization could achieve uniform enforcement of state laws, provide review of decisions of local prosecutors, and aid enforcement by
making information and facilities available to each locality.
Thus, at the state level, a board should be created which would, at a
minimum, coordinate the system of prosecution and achieve uniformity
of enforcement.155 Moreover, the board could assist small, rural offices
by providing facilities and information otherwise difficult to obtain. The
board could also serve as an appellate body to review the decisions of the
prosecutor. If a party sought to initiate proceedings and the prosecutor
refused, the board should be empowered to require him to account for
the reasons for his action and, if unwarranted, to compel prosecution.
Where the state Attorney General appoints local prosecutors, his office
could perform these functions and provide additional assistance in the
development of prosecution programs, the provision of support services,
and continuing education.
D. Limited Administrative and Judicial Review
Meaningful control of discretion cannot be accomplished without at
least some form of internal administrative review and limited judicial review. It is possible to have standards without judicial review, but there is
no assurance that the standards are either complied with or considered. 50
The major thrust of discriminatory enforcement claims now being considered by the courts is that the decision to prosecute was not based on a
legitimate law enforcement objective, but on arbitrary and unjustifiable
reasons.15 Claims of discriminatory enforcement are seldom successful,
however, because the prosecutor's decision is presumed to be regular,
improper prosecutorial motives are difficult to prove, 158 and the defendant has the burden of showing that the reasons for prosecution are
unrelated to a legitimate law enforcement policy. 5 ' Thus, absent a sus155 NAC: COURTS, supra note 42, Standard 12.4. The American Law Institute recommends a more active role by the state attorney general in determining the standards for
screening defendants. See ALI MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 320.1(5)
(Tent. Draft No. 5A, 1973).
156 For an instructive debate on the effectiveness of judicial review under the Administrative Procedure Act, compare 4 DAVIS, TREATISE, supra note 93, at §§ 28.15 & 28.16
(Supp. 1966) with Berger, Administrative Arbitrarinessand Judicial Review, 65 COLUM.
L. REv. 55 (1965).
157 See generally Givelber, supra note 123; Comment, The Ramifications of United
States v. Falk on Equal Protection from Prosecutorial Discrimination, 65 J. CRIM. L.
62 (1974); Comment, The Right to Nondiscriminatory Enforcement of State Penal
Laws, 61 COLUM. L. REV. 1103 (1961); Note, Discriminatory Law Enforcement and
Equal Protection from the Law, 59 YALE L.J. 354 (1950).
158 Comment, Ramifications of United States v. Falk, supra note 157, at 65.
159 Givelber, supra note 123, at 97; see, e.g., People v. Utica Daw's Drug Co., 16
App. Div. 12, 225 N.Y.S.2d 128 (1962).
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pect criterion such as race, religion, or cultural background, it is unlikely
that the defendant will be able to prove arbitrary action. 60 Even if selective enforcement can be established, the prosecutor may successfully
argue that unequal enforcement was justified for purposes of deterrence
or other worthy circumstances.
Absent rules and regulations governing prosecutorial conduct, the
courts have been reluctant to substitute their own independent judgment
for that of the prosecutor.' 6 ' However, with the promulgation of standards, judicial review could be limited to the issue of abuse of discretion,' 62 the defendant being required to make at least a colorable claim
that his prosecution violated an established policy of the prosecutor. The
court would consider whether the prosecutor's decision was in fact based
on the standards and policies of the office or was motivated by extraneous
factors. Normally, the court would not review the merits of the prosecutor's policy. Only in cases of the patent and complete absence of a
relationship between a prosecutorial standard and a legitimate law enforcement objective would a court be authorized to invalidate the standard itself.
A system of review which is initiated either by complaint of criminal
defendants or aggrieved citizens is feasible. Decisions to prosecute would
be subject to review, as they are to a limited extent now, at the behest of
the individual being prosecuted. With reference to decisions not to prosecute, citizens who feel aggrieved by the decision should have limited
judicial review available under the same abuse of discretion standard.
Private complainants, however, would be required to exhaust internal
administrative review procedures first. A prerequisite to judicial review
would be the filing of a complaint with the local prosecutor's office to
which the prosecutor would be required to respond. If the complainant
was not satisfied, his next step would be review by the central prosecutorial agency. Only after that agency determined that the public interest
did not require prosecution or other affirmative action would the complainant be allowed to seek an order of the court compelling formal proceedings.
160 Givelber, supra note 123, at 95.
161 See Notes 58-66 supra and accompanying text; Note, Reviewability of Prosecutorial Discretion: Failure to Prosecute, 75 COLUM. L. REV. 130, 160-61 (1975).
162
Courts are becoming increasingly willing to dismiss prosecutions instituted and
conducted in bad faith. See United States v. Sauls, 16 CRIM. L. RPTR. 2034 (D.C.
Super Ct., Sept. 13, 1974); United States v. Banks, 383 F. Supp. 389 (D.S.D. 1974),
i affd. sub nom., United States v. Means, 513 F,.d 1329 (8th Cir. 1975). See aso United
States v. Banks, 374 F. Supp. 321 (D.S.D. 1974). Moreover, a few decisions have been
rendered that indicate a softening of judicial attitude toward suits by private citizens to
enforce the criminal law. See Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev'd
on other grounds sub nom. O'Shea v. Littleton, 414 U.S. 488 (1974); Note, supra note
161, at 153-54.
1976]
GUIDELINES FOR PROSECUTORIAL DISCRETION
In the context outlined above, administrative and judicial review serve
a useful function of validating prosecutorial policies and practices. Many,
if not most, of the practices of a prosecutor's office today are reasonable
and defensible. But review and approval of procedures can eliminate illfounded or random complaints against the prosecutor's office and avoid
the aura of suspicion that attaches to unpublished, secret practices. Review not only reinforces the appearance of fairness within the criminal
justice system but also assists the prosecutor in developing impartial
policies influenced only by matters pertinent to maintaining a just system.
The latter point is important because in many instances promulgation of
standards would be beneficial to the internal operation of the prosecutor's office and may be welcomed by him.
Reluctance to expand judicial review of prosecutorial practices is
based on a fear that it would be just one more method of attacking
and delaying the already overburdened criminal proceedings. 113 Concern
that the criminal proceedings will be unnecessarily protracted is legitimate, but expanded judicial review need not, and will not, necessarily
have that effect. The limited scope of judicial review outlined above
would not significantly impede the administration of criminal cases.
VI. CONCLUSION
Recent events surrounding the resignations of both a United States
President and Vice-President have served to publicize the issue of prosecutorial discretion. The unprecedented full pardon of the former president, which followed the well-publicized plea bargain of the former vice
president, evoked an immediate and unexpectedly angry response from
the general public. In its aftermath, Congress reacted by threatening to
pass legislation to prevent further pardoning of governmental officials
for crimes arising out of Watergate-related activities. The congressional
reaction to the pardon of Mr. Nixon indicates that formal controls on
prosecutorial discretion could become a reality. Although the prospective
pardon granted by President Ford to Mr. Nixon is obviously unique,
conceptually it is little different from the typical prosecutor's decision
not to prosecute persons suspected of crimes. The general justification
offered by the President for his action-that the detriment of a prosecution and trial outweighed any possible benefits-is precisely the same
notion on which the prosecutor typically bases his decision to forego or
limit prosecution of alleged criminal offenders. The unwillingness to
allow a President to short-circuit the criminal process at his will might
readily be transferred to the prosecutor. It is not a long, but may be a
necessary, step.
163 See Abrams, supra note 82, at 51-53.