Prosecutorial discretion
Generally
In the United States, prosecutors have broad discretion in deciding whether to investigate and charge an individual with a crime.2 As a threshold matter, a prosecutor may bring charges if there is probable cause to believe that the accused has committed a crime.3 Prosecutors also have broad discretion as to how to charge a specific offence,4 when to bring charges,5 and whether to negotiate a plea agreement.6 Courts will generally not interfere with charging decisions absent a showing of selective prosecution7 or vindictive prosecution.8
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Footnotes
1 Joseph V Moreno and Anne M Tompkins are partners at Cadwalader, Wickersham & Taft LLP.
2 See United States v. Armstrong, 517 U.S. 456, 464 (1996) (holding that the constitutional separation of powers requires broad prosecutorial discretion); Young v. United States ex. Rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987) (holding that prosecutors have discretion to decide which persons should be the target of an investigation); Wayte v. United States, 470 U.S. 598, 607 (1985) (finding that courts are ill equipped to evaluate the strength of a prosecutor's case, a case's deterrent value, and the government's enforcement priorities). See also American Bar Association, Criminal Justice Standards for the Prosecution Function, Standard 3-4.2 (4th ed. 2015), available at www.americanbar.org/ groups/criminal_justice/standards/, 470 U.S. 598, 607 (1985) (finding that courts are ill equipped to evaluate the strength of a prosecutor's case, a case's deterrent value, and the government's enforcement priorities). See also American Bar Association, Criminal Justice Standards for the Prosecution Function, Standard 3-4.2 (4th ed. 2015), available at www.americanbar.org/ groups/criminal_justice/standards/TableofContents.html">ProsecutionFunctionFourthEdition-TableofContents.html.
3 See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (holding that, if a prosecutor has probable cause to believe that the accused committed an offence, the decisions whether to prosecute and what charges to file rest entirely within his discretion). See also Rinaldi v. United States, 434 U.S. 22, 29-30 (1977) (per curiam) (holding that the prosecutor has discretion to dismiss charges unless dismissal would be contrary to the public interest).
4 See United States v. Batchelder, 442 U.S. 114, 123-25 (1979) (holding that it is proper for prosecutors to bring charges under any statute unless brought for a discriminatory purpose).
5 See United States v. Lovasco, 431 U.S. 783, 795-96 (1977) (holding that an 18-month delay in bringing charges did not violate the defendant's due process rights).
6 See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (holding there is no constitutional right to plea bargain).
7 See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (selective prosecution of Chinese laundry owners but not similarly situated non-Chinese laundry owners).
8 See Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (prosecution of a defendant for a more serious charge in a new trial following a successful appeal of his original conviction).
Published in The Practitioner's Guide to Global Investigations 2018
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