Prosecutorial Discretion Flashcards
Role of Prosecutors
Prosecutors are “ministers of justice” under the Model Rules.
Prosecutorial Discretion
DA has to choose what + who to charge, and sets the stage more than anyone in crim pro and everyone reacts to what the prosecutor decides to do
Inmates of Attica v. Rockefeller (2d. Circuit)
RULE: Ordinarily, a court will not compel a prosecutor to prosecute or refrain from prosecuting a crime. With very narrow exceptions, a prosecutor has very broad discretion with who and what to charge and the courts will not interfere b/c of separation of powers
Civil action brought by families of prisoners for an order to compel prosecution of the state for committing crimes against the inmates under federal civil rights action. Gov’t refused to prosecute, in part b/c prisoners would be unreliable b/c they are criminals + cops would be viewed as more reliable, racial aspect, + jury would likely be sympathetic to the cops rather than the inmates
Separation of Powers
Prosecutors are part of executive branch, judges are part of legislative branch, judges can’t tell prosecutors what to do (with certain limitations)
Linda R.S. v. Richard D
The victims of crimes/their families have no standing to sue a prosecutor for not prosecuting a crime. This is b/c prosecutions are not private actions brought by victims, they are brought by the DA on behalf of all the people, and the injured party is not the victim, but rather society and the state as a whole
U.S. v. Armstrong
While a prosecutor does have broad discretion, they cannot use it in a a manner that violates the constitution (e.g., basing prosecution decision on race, gender, etc).
Out of 24 prosecutions brought for crack in that county, every single defendant was a black guy + this suggested that the law was being applied in a racially discriminatory way in violation of 14th amendment right to due process.
Court says you have to have threshold showing that some sort of discrimination is taking place. Showing that 24/24 of defendants prosecuted for drugs were black was insufficient to even show a prima facie case
Armstrong principles
- Generally, prosecutors have broad discretion as to who to charge and who not to charge and courts are unlikely to interfere (same holding as in Attica)
- However, selective prosecution based on discrimination/discriminatory motive does violate the constitution. If that’s the basis for a prosecutorial decision then the courts will look into it and dismiss the case
- BUT you have to have incredibly powerful evidence to get discovery and to show that this is what is happening, so in practice, a claim of selective prosecution is super hard to win.
it is very very difficult to prove a claim of selective prosecution because you have to prove that similar people are treated differently, generally using the statistics that DA holds, and you’re not gonna get discovery unless you already have a strong case
U.S. v. Batchelder
RULE: Prosecutors have discretion to charge and to decide what type of charges to bring/not bring
E.g., don’t have to prosecute top offense; e.g., Bragg no longer treating certain felonies as felonies but rather as misdemeanors with no jail time
Issue of same crime was punishable by two diff. Statutes. One statute had maximum of 2 years and other had maximum of 5 years - prosecutor charged both, defendant got convicted and sentenced with higher level crime. Defendant appealed and wanted low. Court said that prosecutor has discretion as to which charge to bring, he could bring either or both, and unless that decision was made in some unconstitutional way (e.g., in a discriminatory way), prosecutor has that discretion + court’s don’t have power to change that decision as long as charges are spelled out
Wayte v. U.S.
RULE: Selective Prosecution based on who self-reports is permissible
Draft law required people to register for draft + if you got it you had to register. A bunch of people didn’t want to register + some wrote back refusing to report. By doing so, they established almost every element + received a beg letter asking for them to come back. Those who wrote back a second time, were prosecuted for avoiding the draft.
Question was about whether this was fair prosecution since it doesn’t prosecute everyone who avoided the draft or opposed it.
Passive enforcement scheme - where you only prosecute people who self-report.
SCOTUS said that this was ok b/c of prosecutorial discretion, this was not an infringement of free speech, this didn’t force them to incriminate themselves, they wrote the letter + they weren’t punished for their speech. Its only when the decision to prosecute for an unconstitutional reason will the court set aside the prosecutor’s decision.
U.S. v. Brogan
RULE: Pretextual Prosecution of lesser offenses/cover-up offenses is permissible.
Pretextual prosecution is ok - doesn’t matter why you’re prosecuting someone as long as it’s not on constitutionally impermissible grounds.
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Pretextual Prosecution
A pretextual prosecution - the gov’t wants a particular defendant and to lock them up. They can’t prove the main thing they suspect them of, but can prove a minor thing that they’re committed. Fair
E.g., prosecuting Al Capone for tax evasion instead of his usual mafia activities (murder, extortion, etc) b/c they couldn’t prove anything. This is legal b/c he committed the elements of the crime of tax evasion and that was provable.
Often, people are prosecuted for false-statement crimes when they can’t prove the main crime/prosecuting for money laundering when can’t prove international conspiracy/lying to FBI instead of conspiracy/collusion
