Prosecutorial Discretion


As we will discuss more in depth below about the indictment process, the prosecutor’s power is basically unlimited, and it affects every aspect of the proceeding. If the prosecutor is biased, going for a political move, or simply just wants to get a particular person for any particular reason, then he can do so, and there is almost never any accountability for our prosecutors. This is an area of our justice system that we must focus on and fix in order for there to be true justice.

Under American law, prosecutorial discretion means prosecutors have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring. Once a person has been arrested the criminal case now lies almost exclusively in the prosecutors hands, As the Supreme Court held: "So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." [Bordenkircher v Hayes, 434 U.S.. 357, 364 (1978)]. A fact that prosecutors do not dispute. [See Angela J Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 31-33]. Statistically speaking this ultimate discretion shows racial biases.

Another example is where Michelle Alexander noted: "Georgia's district attorney's, who have unbridled discretion to decide whether to seek this harsh penalty, had invoked it against only 1 percent of White defendants facing a second drug conviction but against 16 percent of black defendants. The result was that 98.4 percent of those serving life sentences under the provision were black. The Georgia Supreme Court ruled, by a 4-3 vote, that the stark racial disparity presented a threshold case of discrimination and required the prosecutors to offer a race-neutral explanation for the results. Rather than offer a justification, however, the Georgia attorney general filed a petition for rehearing signed by every one of the State's forty-six district attorney's, all of whom were white. . . "[Michelle Alexander, The New Jim Crow: Mass Incarceration in the age of Colorblindness, Revised Edition, 2012, p. 114].

Similarly, as discussed in the section about grand juries, prosecutors have control here despite jury's role is to check the prosecutor. [See Andrew Leipold, Why Grand Juries Do not (And Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 274 (1995) (noting that federal grand juries returned indictments in 99.6% of the cases in which they voted on whether to do so and that that "statistics from other years are in accord.")].

The United States Supreme Court has gone to great lengths to ensure there are little to no hurdles between a prosecutor and their discretion. There is no constitutional right to a plea bargain and prosecutors can file more charges then can be realistically be proven in court, so long as probable cause exists. Prosecutors can also with the use of mandatory minimum sentences charge the ones they want to guarantee a high sentence and take away any discretion from the judge and thereby defy the parsimony command of Congress.

Prosecutors and law enforcement rather go into the black neighborhoods then the white neighborhoods to make drug busts. One reason that has been admitted to was they feared arresting the wrong person and having political backlash from someone who is politically connected. As one prosecutor had said "It's a lot easier to go out to the hood, so to speak, and pick somebody than to put your resources in an undercover (operation in a) community where there are potentially powerful people." [See Lynn Lu, "Prosecutorial Discretion and Racial Disparities in Sentencing: Some views of Former U.S. Attorneys," Federal Sentencing Reporter 19 (Feb. 2007):192]

The United States Supreme Court in Armstrong v United States granted prosecutors near immunity in their charging decisions. [Armstrong v United States, ]. Then the Supreme Court held in Purkett that when it comes to jurors, the Supreme Court held that once the prosecutors offer a reason for striking a black juror the judge can believe the excuse or not believe it, no matter how "silly or superstitious" the reason is that appears to be based on race. [Purkett v Elm, 514 U.S. 765 (1995)].


Charging Instruments

Juvenile Charges

There is a difference between charging a minor and charging an adult. However, prosecutors knowingly set up a large portion of our children for failure, for a doomed future. This is especially true for any child that is not white. In a comprehensive study of prosecutorial discretion dealing with juvenile biases it was found it is even more profound. [See Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some: Differential Treatment of Youth of Color in the Justice System (Washington, DC: Building Blocks for Youth, 2000) (report showing Black juveniles arrested for first time offenses were six times as likely as whites to be sentenced to prison for identical crimes.)].

This has a detrimental effect on our youth and future mass incarceration as our justice system currently stands. This is so, because in each step after this the effects are magnified. [Christopher Hartney and Fabina Silva, And Justice For Some: Differential Treatment of Color in the Justice System (Washington, DC: National Council on Crime and Delinquency, 2007)]. For example, the Feds have a complex sentencing Guidelines System that is set up to command and compound this damage even more. Each person's sentence is first based on each prior sentence they have whether it’s a misdemeanor or a felony. Misdemeanors are scored one point, and a felony is scored 2 points or 3 points. There are other factors as well, but this category scores their "Criminal History Category". This category ranges from 0 to 13 points. If you have 13 or more points you are almost guaranteed to be sentenced towards the maximum of the Statutory Guidelines. [See United States Sentencing Guidelines, section 4A1.1 for scoring, and 4A1.2 for definitions].

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