Prosecutorial Discretion

Reprinted from: Prosecutorial Discretion, 40 Georgetown Law Journal 227 (2011) (44 footnotes Omitted)

The government has broad discretion to initiate and conduct criminal prosecutions because of the separation of powers doctrine and because prosecutorial decisions are “particularly ill-suited to judicial review.” So long as there is probable cause to believe that the accused has committed an offense, the decision to prosecute is within the prosecutor's discretion. A prosecutor may also decide what charges to bring, when to bring them, and where to bring them. A prosecutor also has far-reaching authority to decide whether to investigate possible criminal conduct, grant immunity, negotiate a plea bargain, or dismiss charges. Finally, it is the prosecutor's prerogative to recommend downward departures from the Sentencing Guidelines for defendants who have provided substantial assistance to the government.

Although broad, prosecutorial discretion is not unlimited. Courts must protect individuals from prosecutorial decisions that are based on unconstitutional motives or executed in bad faith. Prosecutors may not engage in selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process rights. Most courts of appeals review factual findings related to a determination of selective and vindictive prosecution for clear error.

Selective Prosecution. In Wayte v. United States, the Supreme Court held that in order to demonstrate selective prosecution, a defendant must show disparate treatment and that the prosecution was improperly motivated. Because courts presume that the government undertakes a prosecution in good faith, a defendant challenging an indictment on selective prosecution grounds bears a heavy burden to prove facts sufficient to satisfy these two requirements. A defendant may prove disparate treatment by pointing to other similarly situated individuals who were not prosecuted. Improper motive exists only when the prosecution is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”

In United States v. Armstrong, the Supreme Court held that a defendant is entitled to discovery to help prove a selective prosecution claim if the defendant makes “a credible showing of different treatment of similarly situated persons.” To obtain an evidentiary hearing, a defendant generally must establish a prima facie case of selective prosecution. A defendant waives the defense of selective prosecution by not properly raising it before trial.

Vindictive Prosecution. The Due Process Clause prohibits a prosecutor from using criminal charges in an attempt to penalize a defendant's valid exercise of constitutional or statutory rights. To prevail on a claim of vindictive prosecution, a defendant must show either actual vindictiveness or facts sufficient to give rise to a rebuttable presumption of vindictiveness. A presumption of vindictiveness typically arises when a defendant is reindicted following a trial, but only if there has been an increase in the number or severity of charges. A presumption also arises when a defendant is subjected to additional charges after affirmatively exercising constitutional rights, but not when additional charges are filed after a mistrial or an acquittal. In Blackledge v. Perry, the Supreme Court held that the Due Process Clause prohibits a prosecutor from bringing a more serious charge against a defendant who has pursued a statutory right of appeal from a conviction on a lesser charge for the same offense. Although the defendant in Blackledge did not show actual vindictiveness on the part of the prosecutor, the Court held that due process is offended when increased punishment poses a “realistic likelihood of ‘vindictiveness.”’ A presumption of vindictiveness can be overcome by objective evidence that the prosecution was proper.

Presumptions of vindictiveness ordinarily do not arise pretrial. In Bordenkircher v. Hayes, for example, the Supreme Court found no presumption arising out of threats made by the prosecutor during plea negotiations. The Court reasoned that the “[s] tate's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction [is] ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense.”’ The Court concluded that if the accused is fully informed of the terms of the offer, is free to accept or reject the offer, and is legitimately subject to the threatened additional charge, the danger of retaliation is insufficient to justify a presumption of vindictiveness by the prosecutor in a plea bargaining setting.

Similarly, in United States v. Goodwin, the Supreme Court refused to create a presumption of vindictiveness when additional charges were filed after the defendant requested a jury trial. The Court noted that in the pretrial context, where “the prosecutor's assessment of the proper extent of prosecution may not have crystallized,” reindictment on a more serious charge is much less likely to be motivated by prosecutorial vindictiveness than when a charge is changed after a trial begins or after a conviction has been obtained and the state has had the opportunity to fully assess its case.