Thoughts on regulating prosecutorial discretion
One of the many amazing lines in Judge Batallion’s amazing Huerta-Rodriguez opinion (basics here) was the statement that “[i]n this court’s experience, the Department of Justice does not always ‘charge and pursue the most readily provable’ (beyond a reasonable doubt) crime, especially in drug prosecutions, with the result of introducing more disparity in the system.” This assertion is especially interesting against the backdrop of the recent Comey memo (available here) which seeks to reiterate the prosecutorial obligation to pursue the most serious readily provable offense. It also brings to mind the finding of the US Sentencing Commission in its 15-year report that “significant evidence” suggests that “presentencing stages, such as charging and plea negotiation, … introduce disparity in sentencing.” (The full USSC 15-year report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)
Of course, those of us in the ivory tower have long spotlighted that the inevitability and non-transparency of the exercise of prosecutorial discretion may be the Achilles Heel of efforts to control sentencing disparities. Helpfully, today I can report on two thoughtful efforts from the ivory tower to highlight possible ways to regulate the exercise of prosecutorial discretion.
First, my casebook co-author Ron Wright has posted a draft article on SSRN (which is to be published in the Columbia Law Review and flows from this recent conference) entitled “Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation.” The article’s abstract and a download link is available here. As the abstract explains, Ron’s article examines “potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter.”
Second, frequent FSR and blog contributor Mark Osler has written a piece for an upcoming symposium at Valparaiso Law School entitled “This Changes Everything: A Call For A Directive, Goal-Oriented Principle to Guide the Exercise of Discretion by Federal Prosecutors.” As Mark explains, the piece “recognizes the problem over-broad prosecutorial discretion in the federal system and proposes a solution: That the Attorney General direct federal prosecutors to make discretionary choices from a single guiding principle.” Specifically, Mark’s article, which can be downloaded below, suggests “that all discretionary choices be made with the conscious goal of reducing crime by focusing on the ‘key men’ amongst defendants, defining the key man as either a member of a crime network with special skills or a recidivist who poses a future danger.”