There is a certain degree of discretion that is allowed of criminal justice professionals as they carry out their duties. However, as they do their jobs, there are ethical boundaries that must be respected, and depending on the role of the professional, those boundaries could vary as to how an individual conducts their business. Prosecutorial discretion is exercised by prosecutors all the time, and this discretion allows those trying the case to have the ultimate say, on the charges they want to bring, in order to convict an individual. Ethical lines here are very thin, and there are many opportunities for potential abuse. We rely on our justice system to maintain society and to always be blind when it comes to enforcing the law, but abuse will happen. It is very important that we study and understand how we deal with that abuse.
It is the ethical and legal obligation of a prosecutor to provide any exculpatory evidence to the defense, that may influence the sentence or the verdict itself. If this is not done, it deprives the defendant of his right to due process. This was established in the Supreme Court Case Brady v Maryland (1963). It is the constitutional duty of a prosecutor, to adhere to a strict ethical standard when using this discretion and this is why we have standards in place for criminal justice professionals, before they are given the necessary credentials that allow them to practice in their chosen field. A prosecutor looking to score a conviction or multiple convictions, must have a thorough understanding of the law and what criteria is necessary to convict a person on a specific charge. For example, a prosecutor may decide to bring 2nd degree murder charges against a defendant as opposed to a 1st degree, due to the fact that the killing clearly involved some degree of malice, but, did not show premeditation. This is the reason why the decision is left up to the prosecution.
This discretion is used strategically by the prosecution, in order to increase the probability that a conviction is handed down by the jury. In Europe and Latin America, the justice system not only condones, but requires that if there is evidence of a crime, that the defendant must be charged for that said crime (Bibas, 2010). This is referred to as mandatory prosecution. Prosecutorial discretion is woven deeply into the American justice system, and it has always been understood that that discretion would always be used to some extent. The prosecutor has a crucial duty in the administration of justice in US courts. The prosecutor represents society and does not act on the behalf of any law enforcement agency or individual that is wronged or hurt via a crime. The prosecutor does not only act in support of societal interests, but also tries to gauge substantively, what the level of interest is among a people, to seek punishment for a particular crime. Those that are students of American juris prudence, and sociologists alike acknowledge the difference between law that is on the books as it is written, and the action that is taken by the criminal justice system, as it can be quite different in practice when discretion is utilized.
There are many issues that exist with discretion at the hands of a prosecutor, as abuse is not uncommon while the prosecution walks that line that lies between unethical and illegal. As mentioned above, failure to disclose exculpatory evidence is an ethical line that was turned into a legal line by the Supreme Court. An improper argument is also frowned upon, this states that there are certain arguments that are prohibited during opening or closing arguments. Some examples of this include, introducing facts that have not yet been brought to light, misstating the law as it is written, and also critique or ridicule of a defendant, for exercising his 5th amendment rights. Improper use of the media, Introduction of false evidence, and discrimination in jury selection are also forms of prosecutorial misconduct.
Prosecutorial discretion can easily lead to abuse, but it is important for the prosecution to have this power so that they can offer plea bargains when necessary or relevant, and also allows for the granting of immunity (Diamond, 1988). This type of deal is known as prosecutorial adjudication, and it was once, ultimate authority given to a judge, not a prosecutor. This means that there was a time where a plea deal could be shot down or expanded by a judge if he saw a need to do so. Federal law, instead decided to establish that a judge is prohibited from interfering with prosecutorial decisions. The proper use of this authority requires sound judgement, and a somewhat of a moral compass when it comes to decision making. Violations of ethical standards, committed by criminal justice professionals, poisons the pot and leaves the entire system compromised. There are pros and cons to this prosecutorial authority, pros in the form of benefits, and cons that make for an increase in abuse potential (Davis, 2009). As mentioned before, one of the advantages in using this discretion involves the opportunity that it creates for cutting plea deals and offering immunity in cases where there is a bigger fish to fry, and someone is needed to provide testimony against that big fish. The fact that prosecutorial discretion can help expedite the process, is also useful in cutting down the amount of time that an individual spends in jail while he/she stands trial, hence providing the speedy trial that is promised in the 6th amendment and keeps the cost of care for the individual down, while promoting wise use and allocation of taxpayer money.
One of the hot button issues in the last year, has been illegal immigration and its effect on national security and the economy. Prosecutorial discretion also plays a role here. During the Obama administration, many lawmakers were calling on President Obama to defer deportations for those that were in our country illegally. Many questioned the constitutionality of such action, and the eventual implementation of DACA walked the line between constitutional authority and blatant usurpation of executive authority. This discretion was used again under President Trump, as he was seeking to end this program as he allowed six months for congress to write and pass legislation that would solidify the status of the so called, “Dreamers”. The Department of Justice Office of Legal Counsel stated in a memo, that this executive action carried out by the President, was justified but that the authority being exercised is not unlimited. This memo was attempting to draw a distinct line that separated constitutional from unconstitutional regarding this matter. It cited Heckler v Chaney (1985), as it outlined four principles for acting within the legal realm of discretion. The first states that any decisions made regarding enforcement, should be in the area of expertise, of the government entity or agency that is flexing discretion muscle. Second, the President cannot write laws unilaterally, without legislation passed in congress, to satisfy his own political preferences. Third, the President cannot implement a measure so extreme, that it abdicates the executive’s legal obligation to enforce the law, as it is the responsibility of the executive to faithfully execute the laws. This is referred to as the take care clause. And fourth, is not taken straight from the Chaney decision, but it is the most important, and it states that non-enforcement of the law on a case by case basis is not reviewable by the judicial branch, meaning that it cannot be deemed unconstitutional by the courts. Many constitution advocates, have a real problem with this type of bending and twisting of words, in order to justify unilateral action by the president.
The constitution was written in order to restrain government and its authority, in the last century or so, we have seen more and more usurpation of this government authority while the American citizens have remained silent. One must realize that discretion that is given to the prosecution has a much greater impact on society, when it is the Department of Justice or the President, as opposed to a prosecutor in a court room. This magnifies the dangers that are associated with such action, regarding a potential abuse of power. One can see the relevance here in a courtroom but the exercise of this discretion by our executive branch, that already has a great deal of power, places our constitutional republic in a tough spot. The federal government was not supposed to have this kind of raw power and authority. Federal prosecutors are given incentives to exercise discretion in a way that adversely affects a defendant’s fate, and they can do so, because they are not subject to judicial review, as was mentioned above (Kadish, 2010). The federal criminal code has expanded over the last two hundred years, and when statutes seem to become redundant, the federal prosecutor can choose any of the options that are put before him and choose to overlook others. The Articles of Confederation, or the original draft of what would eventually be our constitution, utilized no central government, and had each state operating as a completely sovereign entity, with the federal government only acting as an advisor, with no lawmaking authority. However, the founders eventually went back to the drawing board and factored in variables like logistics in times of need. They decided that it was good to have central government because at the time, they were struggling in the individual states while fight war because it was extremely difficult for them to get materials and other supplies to where they needed to go because there was no central unified governing body. In turn they opted for a federal government that would some consistency and streamline the process in cases where these types of problems arise. Unfortunately, this federal government has turned into a bloated bureaucracy that operates to control the people, not allow for their free exercise of liberty.
We need to recognize that the core value of respect is relevant to the use of discretion, as we need to respect the dignity of individuals when they are functioning in the criminal justice system as a prosecutor, a defense attorney, or even a defendant, all must be given acknowledgment for their talents and all must be given a chance to have their voice heard. Ethical standards are established in an attempt to dictate what practices are acceptable within a chosen profession, and which ones are frowned upon. When one goes to take the BAR exam, he/she is evaluated for ethics and there are standards that a legal professional must adhere to when practicing law (Cassidy,2013). There are ethics violations that will not necessarily put you behind bars but would result in the loss of the credentials necessary to practice law. This takes us back to the difference between legality and morality, as we know that the two are not always the same. People want to feel confident in the system and they want to feel like justice is being done. Unfortunately, many of these feelings seem unrealistic, since we do have so much dishonesty within the system, and unethical behavior sometimes, seems as if it is a prerequisite for those entering the profession as opposed to something that is looked down upon. Stereotypes regarding lawyers, tend to portray an arrogant dishonesty, that comes off as untrustworthy to the masses. What does it say about our system, when the general public has this kind of view of our once sacred system of justice? Even if it is done mostly tongue in cheek, it still shows a vulnerability that we have in the American system. We want to know that the bad guys are going to be put away, and that the innocent will be protected. We don’t want egomaniacal prosecutors throwing people in jail just because he wants to collect another scalp, and in contrast we don’t want a prosecutor that goes soft and allows a hardened criminal to get off with a slap on the wrist, due a discretionary decision. The golden rule that states, do unto others as you would have them do unto you, seems to be the best way to measure ethical and moral standards, and how they affect other people. Although it seems that many Americans tend to have a hard time acknowledging the needs of others in modern times, and this inability, or unwillingness to recognize others’ feelings, wants, and needs, almost falls into the realm of a sociopath.
In conclusion, prosecutorial discretion has its place in American society and our justice system, but in order for it to function effectively, close attention must be paid to ethical standards, their effects on society, and individuals, and also enforce the ethical standards that are established within a profession, as to weed out those that would act in an unprofessional manner. We need to place people in these positions that have a strong moral compass, the ability and will to respond to that compass when they hit a crossroad, and a decision is warranted.
References
Bibas, Stephanos, "The Need for Prosecutorial Discretion" (2010). Faculty Scholarship. Paper
1427. http://scholarship.law.upenn.edu/faculty_scholarship/1427
Cassidy, R. M. (2013). Prosecutorial ethics. St. Paul, MN: West.
C Davis, A. J. (2009). Arbitrary justice the power of the American prosecutor. New York:
Oxford University Press.
Diamond, S. (1988, July 21). PROSECUTORIAL DISCRETION: WORTHY OF DEFENSE?
Retrieved February 13, 2018, from http://www.nytimes.com/1988/07/22/us/the-law-
prosecutorial-discretion-worthy-of-defense.html
Kadish, M. R. (2010). Discretion to disobey: a study of lawful departures from legal rules. New
Orleans, LA: Quid Pro Books.
It is the ethical and legal obligation of a prosecutor to provide any exculpatory evidence to the defense, that may influence the sentence or the verdict itself. If this is not done, it deprives the defendant of his right to due process. This was established in the Supreme Court Case Brady v Maryland (1963). It is the constitutional duty of a prosecutor, to adhere to a strict ethical standard when using this discretion and this is why we have standards in place for criminal justice professionals, before they are given the necessary credentials that allow them to practice in their chosen field. A prosecutor looking to score a conviction or multiple convictions, must have a thorough understanding of the law and what criteria is necessary to convict a person on a specific charge. For example, a prosecutor may decide to bring 2nd degree murder charges against a defendant as opposed to a 1st degree, due to the fact that the killing clearly involved some degree of malice, but, did not show premeditation. This is the reason why the decision is left up to the prosecution.
This discretion is used strategically by the prosecution, in order to increase the probability that a conviction is handed down by the jury. In Europe and Latin America, the justice system not only condones, but requires that if there is evidence of a crime, that the defendant must be charged for that said crime (Bibas, 2010). This is referred to as mandatory prosecution. Prosecutorial discretion is woven deeply into the American justice system, and it has always been understood that that discretion would always be used to some extent. The prosecutor has a crucial duty in the administration of justice in US courts. The prosecutor represents society and does not act on the behalf of any law enforcement agency or individual that is wronged or hurt via a crime. The prosecutor does not only act in support of societal interests, but also tries to gauge substantively, what the level of interest is among a people, to seek punishment for a particular crime. Those that are students of American juris prudence, and sociologists alike acknowledge the difference between law that is on the books as it is written, and the action that is taken by the criminal justice system, as it can be quite different in practice when discretion is utilized.
There are many issues that exist with discretion at the hands of a prosecutor, as abuse is not uncommon while the prosecution walks that line that lies between unethical and illegal. As mentioned above, failure to disclose exculpatory evidence is an ethical line that was turned into a legal line by the Supreme Court. An improper argument is also frowned upon, this states that there are certain arguments that are prohibited during opening or closing arguments. Some examples of this include, introducing facts that have not yet been brought to light, misstating the law as it is written, and also critique or ridicule of a defendant, for exercising his 5th amendment rights. Improper use of the media, Introduction of false evidence, and discrimination in jury selection are also forms of prosecutorial misconduct.
Prosecutorial discretion can easily lead to abuse, but it is important for the prosecution to have this power so that they can offer plea bargains when necessary or relevant, and also allows for the granting of immunity (Diamond, 1988). This type of deal is known as prosecutorial adjudication, and it was once, ultimate authority given to a judge, not a prosecutor. This means that there was a time where a plea deal could be shot down or expanded by a judge if he saw a need to do so. Federal law, instead decided to establish that a judge is prohibited from interfering with prosecutorial decisions. The proper use of this authority requires sound judgement, and a somewhat of a moral compass when it comes to decision making. Violations of ethical standards, committed by criminal justice professionals, poisons the pot and leaves the entire system compromised. There are pros and cons to this prosecutorial authority, pros in the form of benefits, and cons that make for an increase in abuse potential (Davis, 2009). As mentioned before, one of the advantages in using this discretion involves the opportunity that it creates for cutting plea deals and offering immunity in cases where there is a bigger fish to fry, and someone is needed to provide testimony against that big fish. The fact that prosecutorial discretion can help expedite the process, is also useful in cutting down the amount of time that an individual spends in jail while he/she stands trial, hence providing the speedy trial that is promised in the 6th amendment and keeps the cost of care for the individual down, while promoting wise use and allocation of taxpayer money.
One of the hot button issues in the last year, has been illegal immigration and its effect on national security and the economy. Prosecutorial discretion also plays a role here. During the Obama administration, many lawmakers were calling on President Obama to defer deportations for those that were in our country illegally. Many questioned the constitutionality of such action, and the eventual implementation of DACA walked the line between constitutional authority and blatant usurpation of executive authority. This discretion was used again under President Trump, as he was seeking to end this program as he allowed six months for congress to write and pass legislation that would solidify the status of the so called, “Dreamers”. The Department of Justice Office of Legal Counsel stated in a memo, that this executive action carried out by the President, was justified but that the authority being exercised is not unlimited. This memo was attempting to draw a distinct line that separated constitutional from unconstitutional regarding this matter. It cited Heckler v Chaney (1985), as it outlined four principles for acting within the legal realm of discretion. The first states that any decisions made regarding enforcement, should be in the area of expertise, of the government entity or agency that is flexing discretion muscle. Second, the President cannot write laws unilaterally, without legislation passed in congress, to satisfy his own political preferences. Third, the President cannot implement a measure so extreme, that it abdicates the executive’s legal obligation to enforce the law, as it is the responsibility of the executive to faithfully execute the laws. This is referred to as the take care clause. And fourth, is not taken straight from the Chaney decision, but it is the most important, and it states that non-enforcement of the law on a case by case basis is not reviewable by the judicial branch, meaning that it cannot be deemed unconstitutional by the courts. Many constitution advocates, have a real problem with this type of bending and twisting of words, in order to justify unilateral action by the president.
The constitution was written in order to restrain government and its authority, in the last century or so, we have seen more and more usurpation of this government authority while the American citizens have remained silent. One must realize that discretion that is given to the prosecution has a much greater impact on society, when it is the Department of Justice or the President, as opposed to a prosecutor in a court room. This magnifies the dangers that are associated with such action, regarding a potential abuse of power. One can see the relevance here in a courtroom but the exercise of this discretion by our executive branch, that already has a great deal of power, places our constitutional republic in a tough spot. The federal government was not supposed to have this kind of raw power and authority. Federal prosecutors are given incentives to exercise discretion in a way that adversely affects a defendant’s fate, and they can do so, because they are not subject to judicial review, as was mentioned above (Kadish, 2010). The federal criminal code has expanded over the last two hundred years, and when statutes seem to become redundant, the federal prosecutor can choose any of the options that are put before him and choose to overlook others. The Articles of Confederation, or the original draft of what would eventually be our constitution, utilized no central government, and had each state operating as a completely sovereign entity, with the federal government only acting as an advisor, with no lawmaking authority. However, the founders eventually went back to the drawing board and factored in variables like logistics in times of need. They decided that it was good to have central government because at the time, they were struggling in the individual states while fight war because it was extremely difficult for them to get materials and other supplies to where they needed to go because there was no central unified governing body. In turn they opted for a federal government that would some consistency and streamline the process in cases where these types of problems arise. Unfortunately, this federal government has turned into a bloated bureaucracy that operates to control the people, not allow for their free exercise of liberty.
We need to recognize that the core value of respect is relevant to the use of discretion, as we need to respect the dignity of individuals when they are functioning in the criminal justice system as a prosecutor, a defense attorney, or even a defendant, all must be given acknowledgment for their talents and all must be given a chance to have their voice heard. Ethical standards are established in an attempt to dictate what practices are acceptable within a chosen profession, and which ones are frowned upon. When one goes to take the BAR exam, he/she is evaluated for ethics and there are standards that a legal professional must adhere to when practicing law (Cassidy,2013). There are ethics violations that will not necessarily put you behind bars but would result in the loss of the credentials necessary to practice law. This takes us back to the difference between legality and morality, as we know that the two are not always the same. People want to feel confident in the system and they want to feel like justice is being done. Unfortunately, many of these feelings seem unrealistic, since we do have so much dishonesty within the system, and unethical behavior sometimes, seems as if it is a prerequisite for those entering the profession as opposed to something that is looked down upon. Stereotypes regarding lawyers, tend to portray an arrogant dishonesty, that comes off as untrustworthy to the masses. What does it say about our system, when the general public has this kind of view of our once sacred system of justice? Even if it is done mostly tongue in cheek, it still shows a vulnerability that we have in the American system. We want to know that the bad guys are going to be put away, and that the innocent will be protected. We don’t want egomaniacal prosecutors throwing people in jail just because he wants to collect another scalp, and in contrast we don’t want a prosecutor that goes soft and allows a hardened criminal to get off with a slap on the wrist, due a discretionary decision. The golden rule that states, do unto others as you would have them do unto you, seems to be the best way to measure ethical and moral standards, and how they affect other people. Although it seems that many Americans tend to have a hard time acknowledging the needs of others in modern times, and this inability, or unwillingness to recognize others’ feelings, wants, and needs, almost falls into the realm of a sociopath.
In conclusion, prosecutorial discretion has its place in American society and our justice system, but in order for it to function effectively, close attention must be paid to ethical standards, their effects on society, and individuals, and also enforce the ethical standards that are established within a profession, as to weed out those that would act in an unprofessional manner. We need to place people in these positions that have a strong moral compass, the ability and will to respond to that compass when they hit a crossroad, and a decision is warranted.
References
Bibas, Stephanos, "The Need for Prosecutorial Discretion" (2010). Faculty Scholarship. Paper
1427. http://scholarship.law.upenn.edu/faculty_scholarship/1427
Cassidy, R. M. (2013). Prosecutorial ethics. St. Paul, MN: West.
C Davis, A. J. (2009). Arbitrary justice the power of the American prosecutor. New York:
Oxford University Press.
Diamond, S. (1988, July 21). PROSECUTORIAL DISCRETION: WORTHY OF DEFENSE?
Retrieved February 13, 2018, from http://www.nytimes.com/1988/07/22/us/the-law-
prosecutorial-discretion-worthy-of-defense.html
Kadish, M. R. (2010). Discretion to disobey: a study of lawful departures from legal rules. New
Orleans, LA: Quid Pro Books.