Rethinking Drug Prosecution: The Impact of Progressive Prosecutors on Outcomes and Disparities

The Police-Prosecutor Charging Decision

Prosecutorial Discretion Is A Shield Not A Sword

Prosecutorial Discretion and Sentencing in Singapore

Seek Justice, Not Just Deportation: How to Improve Prosecutorial Discretion in Immigration Law

Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year. This chapter discusses the role of prosecutors in the misdemeanor system. First, it addresses prosecutorial discretion and mass misdemeanor criminalization. Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases. Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes. This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors. Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record. Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion. Some recently elected so-called progressive prosecutors have already implemented significant promised changes. Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

There is little empirical research to indicate whether the introduction of sentencing guidelines displaces discretion from judges to prosecutors. In the handful of studies that examine the hydraulic displacement of discretion, discretion is usually measured by the rate of charge bargaining. The current study uses an alternative methodology—calculating the value of the bargain—to examine the effect of sentencing guidelines on prosecutorial discretion in the District of Columbia Superior Court. It measures the impact of charge bargaining on sentence length in a sample of 266 pre-guidelines sentences and 263 post-guidelines sentences, and finds that the rate of charge bargaining did not change after the introduction of guidelines, but that the impact of bargaining on sentence length increased slightly. Although the amount of displacement of discretion in the D.C. Guidelines was modest, the study demonstrates that alternative measures (value of the bargain) might reveal displacement of discretion when traditional measures (rate of the bargain) do not.

In a welfare state, the necessity for a certain level of discretion is widely acknowledged. Discretion plays a crucial role in law enforcement practices and is essential for the effective administration of justice. Within international Criminal Justice Systems, prosecutors have a pivotal responsibility in upholding the rule of law. Given their position within the executive branch, prosecutorial discretion becomes imperative. It is vital to observe that discretion itself is not inherently damaging; however, unchecked and absolute discretion can lead to adverse outcomes. The goal should not be the elimination of discretion, but rather its structured implementation. Within the realm of the criminal justice system, where both the law enforcement agencies and the court possess considerable discretion in pursuit of justice, it follows that the prosecution should also possess a degree of discretion. Without equipping the prosecution with essential discretionary tools, the Punjab Criminal Prosecution Service would be unable to effectively fulfill its role in criminal justice system. Consequently, the time has come to empower the prosecution with the necessary discretion it requires, especially the discretion to decide whether to prosecute or not which stands as a vital prerogative that prosecutors must possess to uphold the justice.

The American public prosecutor exercises a remarkable degree of discretion. In recent years, that discretion has been exposed to public view by a host of empirical studies and, more significantly, by the Supreme Court's legitimation of plea bargaining. One result of these developments has been a gradual change in the relationship between prosecutor and judge. For example, prosecutorial discretion was once regarded by the courts as virtually inviolate. A distinction is now drawn in most jurisdictions between the original charge and the dismissal or reduction of charges after the judicial process has begun. In those jurisdictions, the prosecutor must obtain judicial approval before he may dismiss prosecutions or conclude plea bargains in felony cases. Moreover, influential appellate courts have said a prosecutor may not dismiss cases without a rational basis for doing so. And he may not enter into plea bargains which are contrary to the sound administration of justice. Even the original charging decision has occasionally been subjected to judicial scrutiny in cases involving denial of equal protection by selective prosecution.' As courts have tried to define a limited judicial role in reviewing official action, prosecutors have responded with their own initiatives. Among them has been the suggestion that there should be more administrative rules and

Conversations around criminal legal reform often center around prosecutorial discretion. Yet, we know little about how the demographic characteristics of prosecutors influence case outcomes and race- and sex-based carceral disparities. I investigate this question using an original dataset of all county prosecutors in the US in 2001 and 2007 and find some differences between non-white and female prosecutors and white and male prosecutors. Black prosecutors are associated with fewer felony closures and convictions, Latinx prosecutors are associated with lower Latinx jail populations, and female prosecutors are associated with lower female and Black jail populations, lower Black prison admissions, and lower jail admissions rates. These findings suggest prosecutorial discretion is an important plank of criminal legal reform, and increasing the diversity of those offices may act as an important and initial step to limit the negative effects of the carceral state on particular communities.

Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system. Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards by advocating new legal theories and drawing public attention to a particular issue. Following these initial efforts by practitioners, academics often take up the cause, generating a plethora of different theories. These often turn on fairly fine gradations in approach and on occasion reach exactly the same conclusions on somewhat different grounds. In some cases, such efforts result in adoption of new criminal procedure standards by the courts (with success occurring most often in those cases where the academics have achieved a high degree of consensus). In others, the academic debates seem to become primarily a theoretical exercise with a life of their own. Lower courts may on occasion base a decision on one of the theories. The Supreme Court may even discuss certain basic principles of the reform efforts with apparent approval, but this is typically dictum in a decision rejecting the reformers' position in that particular case. While such Supreme Court dictum is sometimes adopted readily by lower courts as a new controlling standard, in many cases the dictum ends as just that. It may serve as an admonition to police and prosecutors, but it does not create any enforceable rights for

Under the complex circumstances and the limited capacity in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. Moreover, the individuals and the crimes over which the Court exercises its jurisdiction, and the present circumstances in which it operates raise political sensitivities that might undermine the ability of the Court to deliver its justice effectively. The ICC prosecutor faces a complex dilemma in negotiating a relationship between fealty to the law and the impact and possible benefits of political exigencies in delivering justice. It also raises the problem of the role of political considerations within the decision-making process. The exercise of discretion lies at the heart of these challenges, as the ICC’s Statute allows the prosecutor to exercise significant discretion. This thesis will explore and analyse the discretionary power of the ICC prosecutor. It situates the development of the office historically by referring to the experiences of the War Crimes Tribunals after World War II and the two United Nations Tribunals of the 1990’s. Against this background, it examines the scope of discretion and the way the Prosecutor has exercised it. This thesis will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on ‘sufficient gravity’ and ‘the interests of justice’. The thesis will suggest that the indeterminacy of the legal thresholds, such as ‘sufficient gravity’ is the space, which, in effect, allows decision-makers to exercise a wide range of discretion. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different concept and allows decision-makers to consider extra-legal considerations, as the case with the term ‘interests of justice ’. An implication of the interpretation of the terms like ‘sufficient gravity’, is that the prosecutor can appear to possess almost unlimited power. In exploring the relationship between the two types of discretion the thesis will root the analysis within a close reading of examples of the investigations and prosecutions, and the scholarly literature. The thesis also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. The thesis engages with the repeated statements by prosecutors, which have denied the use of discretion and asserted a fealty to strict legalism. It suggests that beneath these statements lie a resource, discretion, which helps not hinders international criminal justice.

Stephen Calkins' article, which draws on his considerable experience in navigating through the legal system, provides an impressive road map of many critical issues currently facing the system.1 Should corporate misconduct be controlled through criminal or administrative penalty procedures? Should these procedures focus on entities or on individuals? Should the goal be deterrence or compensation of harms? My comments will sketch a few additional landmarks onto this road map from a researcher's perspective, drawing primarily on my two decades of empirical research on deterrence theory. I hope to convey some of the interesting policy implications of recent deterrence research. Many people still think that deterrence models focus exclusively on the use of legal penalties to control clearly defined misconduct perpetrated by fully informed, rational corporations. However, more recent analyses attempt to identify the relative costs and benefits associated with alternative enforcement strategies in typical complex settings like those described by Calkins. This research continues to focus on economic efficiency, but now incorporates broader institutional and motivational analyses in order to understand the increasingly complex institutional structures and policy objectives involved in mitigating a growing range of social harms. I will begin with a brief discussion of the simple deterrence model, which still provides a powerful analytic tool for the conditions that match its assumptions. I will then describe the extensions developed during the past two decades that address the following issues: (1) bounded rationality and the problem of corporate errors; (2) ambiguity of rules and cooperative enforcement; (3) collective action and voluntary compliance; and (4) prosecutorial discretion and the accountability of enforcement agencies. Each of these issues has quite different implications for the theory of deterrence as well as for the practical is-

Professor Lynch's paper on the role of criminal law in policing corporate misconduct is an excellent summary of a very difficult problem. After reviewing the role of criminal prosecution in the area of white collar crime, and contrasting the effects of civil and criminal prosecution, Lynch concludes that there is a role for criminal enforcement in these cases. However, he also notes that prosecutors do and must continue to exercise considerable discretion when deciding whether to prosecute a particular case or to let the civil justice system exact the appropriate remedy. Lynch advises that our system must overtly recognize the existence of, and the need for, prosecutorial discretion and develop standards for the exercise of this discretion in order to promote the values that our criminal law seeks to reinforce in society. Lynch's recognition of the need for discretion is crucial. While there may be an opportunity for criminal prosecution in much of what goes on in business and corporate life, it would not be practical to employ criminal prosecution on each occasion-to do so would cause a fundamental breakdown in the econ-

Dutch criminal law offers politicians no immunity for public office offences. Cabinet members and Members of Parliament stand trial for these offences in a single instance, before the Supreme Court. The decision to prosecute is made by either the Parliament or the Government. The prosecution is not handled by the Public Prosecution Service, but by the Procurator-General at the Supreme Court. These arrangements exclude the possibility that the Minister of Security and Justice influences the prosecution. This minister enjoys wide powers of instruction vis-a-vis the Public Prosecution Service, which are necessary to keep the application of the expediency principle within acceptable limits. These powers of instruction can also be directed at political opponents. The special arrangements therefore aim at striking a balance between making prosecutions a real possibility and shielding politicians from light-hearted prosecutions. The desired balance is not found, however, because serious legislative shortcomings render the procedural arrangements ineffective. Dutch politicians therefore have little to fear from prosecutions for public office offences.