The Victim and Prosecutorial Discretion: The Federal Victim and Witness Protection Act of 1982

Abstract

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