Prosecutorial discretion is a hot topic these days. The Obama administration couched its immigration non-enforcement policy decision in terms of prosecutorial discretion. Attorney General Holder announced a policy that henceforth, prosecutors would avoid charging crimes that carry mandatory minimum sentences. Are these proper or improper exercises of prosecutorial discretion?
This is the first post in a three-part series giving a framework for understanding prosecutorial discretion. Part one will focus on its constitutional and statutory origins. Although everyone recognizes that prosecutorial discretion exists, there is little agreement about why it exists and where it comes from. Part two will examine its limits. Part three will note some of the policy concerns with its use (or overuse) and offer some concluding thoughts.
First, a bit of history. Prosecutorial discretion finds its historical origins in English criminal law. In colonial times, government prosecutors initiated criminal prosecutions, of course, but so could private victims. (Today, by contrast, the prosecuting attorney is invariably an agent of the government and retains all responsibility for criminal prosecutions.) In all cases, the colonial public prosecutor retained the power of nolle prosequi, that is, the right to decline a prosecution or end a pending prosecution, even if a private party had brought the prosecution in the first place. In such a decentralized system, the ability to decline to prosecute a crime was a given: The government could decline, and victims were under no obligation to bring or continue private criminal prosecutorial actions if the government declined to do so.
Although the adoption of the federal Constitution brought a different structure to national government while continuing many practices from the common law, the Constitution does not provide for a general power of prosecution or identify which branch (if any) should be responsible for prosecutions of federal crimes. In addition, the enumeration of legislative powers and the elimination of ex post facto laws put an end to the common-law criminal offenses that characterized the colonial era.
Congress therefore passed the Judiciary Act of 1789, which created a federal law enforcement structure, including district attorneys (U.S. Attorneys) charged with enforcement of federal law in every judicial district. The statute articulated these attorneys’ duty to prosecute “all delinquents” for federal crimes and offenses, even though federal prosecutors routinely exercised the power of nolle prosequi and declined to prosecute all crimes. The statute did not expressly prohibit citizens from bringing private prosecutions, but the practice of private prosecutions was never established in the federal system.
In general, an uncontroversial early federal practice is a good indicator of original meaning, whether of a statute or the Constitution. In this case, though, the Constitution and the Judiciary Act were passed close enough in time that it’s not clear whether prosecutorial discretion arises out of one or the other. And the lack of a clear textual grant of discretion in either statute or Constitution muddies the water further. If prosecutorial discretion arises out of the Constitution, then Congress and the courts are limited in their ability to cabin it. If prosecutorial discretion is statutory, by contrast, Congress’s ability to constrain discretion would be quite substantial. Let’s review some of the arguments.
Does prosecutorial discretion have a source in the Constitution? Some have suggested that it is a core component of “executive power.” In Heckler v. Chaney (1985), for instance, Justice Rehnquist described the decision not to indict as “a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution” under Article II, Section 3 to “take care” that the laws be faithfully executed. The Department of Justice takes a similar position, that prosecutorial discretion is constitutionally derived from the Constitution’s directive that the laws be “faithfully executed.” Or perhaps it’s necessary under the separation of powers. Justice Scalia took this view in his dissent in Morrison v. Olson (1988), writing that it was “the balancing of various legal, practical, and political considerations, none of which is absolute,” such that removing the “core prosecutorial function” from the control of the executive (in the form of an “independent counsel”) would violate the separation of powers.