Bench Memos

Prosecutorial Discretion, Part One: Indisputably There, But Disputably from Where?

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.

Or perhaps prosecutorial discretion is a creature of statute. This is certainly plausible, since the authority to prosecute in 1789 would have probably included the common law power of nolle prosequi. The Judiciary Act of 1789 was passed against the backdrop of the common law prosecutorial powers, and set forth no standards to govern the manner of enforcing the law (nor did it explicitly provide for discretionary powers). In 1861, Congress conferred ultimate responsibility for criminal prosecutions upon the politically appointed attorney general, again without modifying the scope of prosecutorial discretion. (The Supreme Court later interpreted this statute as giving the attorney general “exclusive direction” of the prosecution before indictment.)

Or maybe prosecutorial discretion is nothing more than a prudential doctrine that rests on the institutional inability of the courts to properly evaluate non-enforcement decisions. In Wayte v. United States, for instance, Justice Powell described prosecutorial discretion as based

largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.

(Courts are, however, willing to review prosecution decisions under some circumstances. I will discuss judicial review in more detail in Part Two.)  Still other cases have claimed to find the source of prosecutorial discretion in the authority of the Attorney General position at common law or some combination of the two.

Whatever the basis for criminal prosecutorial discretion, the invocation of “prosecutorial discretion” is now broader than just criminal law. In the age of the pen and the phone, the federal government routinely invokes “prosecutorial discretion” for even non-criminal administrative agency decisions. In Massachusetts v. EPA (2007), for instance, the Supreme Court noted that the agency’s claimed discretion not to act “is at its height when the agency decides not to bring an enforcement action.” However, the court still went on to find that the statute set out criteria that could be used to judicially evaluate whether the agency’s decision not to act was lawful. As such, Massachusetts reflects the view of the governing case law that the “prosecutorial discretion” of non-criminal administrative agencies is a creature of statute, not inherent constitutional authority.

The consequences of answering this question can be quite significant. If prosecutorial discretion is ultimately based in statute, Congress can use its power to take away discretion—including perhaps even the power of nolle prosequi – through legislation. The Supreme Court passingly endorsed this conclusion in 1869, even though the court has been hesitant to endorse such a broad view of congressional power any time recently. But if the Court was right in 1869, are there limits to how far Congress or the courts can constrain prosecutorial discretion?

I don’t intend to resolve these important debates here. Instead, I want to pose the question that part two will try to answer: What are the limits on that discretion? Stay tuned.

Further reading:

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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