Prosecution: The Decision to Charge a Suspect with a Crime. By Frank
W. Miller.' Boston: Little, Brown & Co., 1969. pp. xviii, 366. $12.50.
Since the time when Zeus sent Pandora to earth and she, through
curiosity, released upon man a multitude of plagues-such as gout,
rheumatism, and colic for his body, and envy, spite, and revenge for his
mind-all that remained unreleased was hope. Hope has since been
pursued by man in his own strange way. Some have sought eternal youth
while others attempt to build better mousetraps. Quick solutions, such
as the dollar cure from the medicine show, are essential. We have little
patience for history or analysis. We want results-the magical cure.
Unfortunately, solutions based on quick-sand are really not solutions.
The American Bar Foundation's series on the administration of criminal
justice in the United States, with Frank J. Remington, editor, is not an
attempt to cure the ills of society. It does not propose solutions. Instead,
it is a very detailed objective analysis of the use of discretion in the
administration of criminal justice. The titles to the five volumes in this
series disclose this purpose: Detection of Crime: Stopping and
Questioning, Search and Seizure, Encouragement and Entrapment,2
A rrest: The Decision to Take a Suspect into Custody,3 Prosecution: The
Decision to Charge a Suspect with a Crime, Conviction: The
Determination of Guilt or Innocence Without Trial,4 and Sentencing:
The Decision as to Type, Length, and Conditions of Sentence. 5 These
types of analyses are necessary steps before meaningful solutions can be
Professor Frank W. Miller's volume in this series, Prosecution: The
Decision to Charge a Suspect with a Crime. represents a significant
contribution to the understanding of the decision to charge. All too often
the decision to charge has been dismissed summarily with the
explanation that what is involved is the "prosecutor's discretion." Much
more is involved. The purpose of this volume is to extract from field data
of three jurisdictions (Kansas, Michigan, and Wisconsin) an analysis of
the following questions. First, with whom does the prosecutor share
responsibility for making the charging decision? Second, what criteria
I. James Carr Professor of Criminal Jurisprudence, School of Law, Washington University.
2. By Lawrence P. Tiffany, Donald M. Mcintyre, Jr., & Daniel L. Rotenberg. Boston: Little,
Brown & Co., 1967. pp. xxx, 286.
3. By Wayne R. LaFave. Boston: Little, Brown & Co., 1965. pp. xxxiv, 540.
4. By Donald J. Newman. Boston: Little, Brown & Co., 1966. pp. xxvii. 259.
5. By Robert O. Dawson. Boston: Little, Brown & Co., 1969. pp. xxxii, 428.
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are used? Third, have formal norms been stated to guide or control the
decision? Fourth, are sanctions, either legal or informal, available to
insure proper application of these norms?
Unlike the decision to arrest, the decision to charge is not a unitary
decision. Instead, this decision requires the resolution of three related,
but independently important, issues. Is there sufficient probability of
guilt to warrant subjecting the person to a trial? Assuming sufficient
probability of guilt, should prosecution nevertheless not follow? If a
decision to prosecute is made, what specific crime or crimes should be
selected for which the person is to be prosecuted? Consideration of these
issues, in various settings, recur throughout the volume.
Prosecution begins with the question of who should have
responsibility for making the initial charging decision-the police, the
clerk of a court, the prosecuting attorney, or the magistrate. In most
jurisdictions, the decision rests with the prosecutor. While some debate
centers on whether the charging document sould be a warrant or a
complaint, the warrant has been the document most often used under
current practice. Even after arrest, it is used to represent, at least in a
perfunctory sense, judicial approval of the decision to charge. Three
principal methods might be utilized to insure that suspects are not
charged on inadequate evidence: (I) as complete as possible an
examination and evaluation of evidence available at the time the
charging decision must be made; (2) the establishment of intra-office
review procedures; (3) the development of specialists within the office or
reliance on specialists in other departments.
The traditional legal position has been that prosecution should be
initiated only when there is reasonable basis for believing that a crime
has been committed and that the suspect has committed it (i.e., probable
cause). In practice many prosecutors may decide to prosecute only those
suspects whom they believe are guilty beyond a reasonable doubt.
Professor Miller describes the standard of probability utilized in
administering the warrant decision as a dual one: there must not only be
a very strong probability of guilt, there must also be a strong probability
of conviction. Doubts about the law or about the facts (circumstantial
evidence and witness credibility problems) may give the prosecutor
qualms about whether a suspect is guilty. At times obviously guilty
persons are not charged because the ultimate exclusion of evidence
pointing clearly to guilt, such as hearsay, corpus delicti, or illegally
seized evidence, leads the prosecutor to predict that there is little chance
for conviction.
While it is commonly asserted that judicial participation in
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charging is desirable, this ideal is only partially realized in practice. In
theory, the judge might participate in the charging decisions prior to the
holding of a preliminary examination in a serious case, or prior to trial
in a minor case, on any of three different occasions: at the issuance of a
warrant, at the initial appearance, and at a habeas corpus hearing
between the time of the initial appearance and the preliminary
examination or trial when there is no preliminary examination.
Professor Miller examines the degree of judicial participation on each
occasion and reaches the conclusion that these proceedings are not used
to challenge the charging decision. I t is only at the preliminary
examination that the judiciary participates even perfunctorily in the
charging decision. Prosecution presents an extensive discussion of the
actual judicial involvement during the preliminary examination in the
charging decision.
It has never been seriously considered that every violator of every
statute should be apprehended, charged, convicted, and sentenced to the
maximum extent permitted by law. Indeed, our judicial system could not
bear up under the sheer volume. Professor Miller focuses on the extent to
which the law has recognized the right to select among the probably
guilty those to be charged fully, less than fully, or not charged at all. The
greater portion of this volume is devoted to isolating the factors causing
discretion to be exercised at the charging stage. The term "discretion" is
defined as the judgment to officially charge, or to use some informal
alternative to charging, a suspect who is probably enough guilty to
justify the action. While there are limits to discretion, they have not been
set out in legislative enactments and rarely carefully considered in
judicial opinions. This failure to be explicit about the limits of charging
discretion, in the face of almost uncontrolled exercise of it in practice,
has raised concern over what appears to be an erosion of the "rule of
law." An important question, then, is the extent to which it is feasible to
provide criteria for the exercise of charging discretion. The criteria
currently used in day-to-day administration may have important bearing
on this issue. These may be classified into decisions not to proceed
further, not to charge fully, and not to charge. Because of the attitude of
the victim, the cost to the system, or the undue harm to the suspect, the
prosecutor may decide not to proceed further. The cost to the system and
the harm to the suspect may bear on the decision not to charge fully. The
eixstence of alternative procedures that provide adequate incarceration
potential, the use of formal alternatives that would prevent undue harm
to the suspect, the existence of civil sanctions that are regarded as more
effective, the suspect's willingness to cooperate in achieving other
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enforcement goals, and the existence of informal administrative
procedures that more satisfactorily achieve objectives underlying
criminal statutes may lead to a decision not to charge at all.
Following the isolation of the factors causing discretion to be
exercised, Professor Miller then focuses on situations in which there is a
departure from the regular exercise of discretion in favor of full, or at
least comparatively more complete, enforcement of the criminal laws.
The reflection of press and public pressures, the performance of a social
service for the victim or suspect, the facilitation of investigation of
another offense, the anticipation of possible developments in the proof,
the promotion of suspect cooperation with enforcement agencies, the
ridding society of particular offenders, and the compensation for an
acquittal or an inadequate sentence, are analyzed as each affects the
regular exercise of discretion.
The volume on Prosecution would not have been complete had it
not included an analysis of the control of the prosecutor's discretion.
Control takes two forms: legal (direct and indirect) and informal.
Professor Miller defines direct legal controls over prosecution as "those
which may be used to cause a particular suspect to be prosecuted despite
a prior decision by the regular prosecutor that he should not, and those
which prevent prosecution when the basis for selection is an improper
one." By definition, two problem areas have been isolated: control of
prosecutor discretion when it takes the form of negative charging
decisions and control when it takes the form of positive charging (fuller
enforcement than normal). Indirect legal controls are those which permit
the application of sanctions to prosecutors who persistenly demonstrate
unwillingness to enforce the law in expectable fashion. While the indirect
controls are not directed at reversal of a decision in regard to a particular
suspect, their objective is more long range-the ultimate displacement of
the prosecutor from office. While legal controls assume some
importance, the informal accommodation process has been the most
significant means of assuring responsible exercise of charging discretion.
Influence of the police, judicial influence, private complaints, and public
opinion all play an important informal control role.
These five volumes form an excellent study of the use of discretion
in the administration of criminal justice. For this reason, the study has
helped the legal profession become more aware of the functioning of the
criminal justice system. This study, however, has a broader application.
Although customarily the police and prosecutors· have been excluded
from the classification of "administrative agencies," they are as
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representative of administrative agencies as are the federal regulatory
agencies, the welfare agencies, the compensation boards, and the
selective service boards. Thus this study has application to the whole
realm of administrative decision making. Conversely, the know-how
from the advanced agencies, such as the federal regulatory agencies, may
have beneficial application in the administration of criminal justice.
Now that the series has gathered the information concerning the use of
discretion, can administrative law techniques be useful to improve the
quality of justice for individual parties? Assuming that room for
improvement exists,6 then how can we reduce injustice to individual
parties from the exercise of discretionary power? First, the vast quantity
of unnecessary discretionary power that has grown up in our system
should be cut back. Second, the discretionary power that is found to be
necessary should be properly confined, structured, and checked. 7
Martin A. Frey*
6. Kenneth Culp Davis contends that: "In our entire system of law and government, the
greatest concentrations of unnecessary discretionary power over individual parties are not in the
regularoty agencies but are in police and prosecutors." K. DAVIS. DISCRETIONARY JUSTICE: A
7. For a detailed treatment on cutting back unnecessary discretionary power and on properly
confining, structuring and checking necessary discretionary powers, see K. DAVIS. DISCRETIONARY
• Associate Professor of Law, Texas Tecb University.
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