Prosecutorial Discretion

Definition / Rule

Prosecutorial discretion is the broad authority of prosecutors to decide whether to initiate charges, what charges to bring, how to proceed with a case, and whether to offer a plea. This discretion is a core feature of the adversarial system and is presumptively unreviewable by courts. It derives from the executive branch’s constitutional role in enforcing the law (Art. II, § 3). Courts are highly reluctant to second-guess charging decisions absent a constitutional violation.

Elements of Unreviewability

Courts will not review charging decisions unless the defendant establishes:

1. Discriminatory purpose — the prosecution was motivated by a protected characteristic (race, religion, etc.)
2. Discriminatory effect — similarly situated defendants of another race (or other protected class) were not prosecuted

Both elements must be shown. United States v. Armstrong (1996) set a demanding threshold, requiring defendants to obtain discovery about the prosecutor’s charging practices before a selective prosecution claim proceeds.

Constitutional Limits on Prosecutorial Discretion

Selective Prosecution

Prosecution based on race or other protected characteristic violates Equal Protection. United States v. Armstrong (1996): defendant must show both discriminatory effect and discriminatory purpose; discovery of prosecution files requires a threshold showing.

Vindictive Prosecution

Due process prohibits prosecution driven by a desire to punish a defendant for exercising a legal right.

• Blackledge v. Perry (1974) — After defendant exercised right to de novo trial, prosecutor increased charge from misdemeanor to felony. Presumptively vindictive; due process violation without need to prove actual vindictiveness.
• United States v. Goodwin (1982) — Prosecutor increasing charges before trial (as opposed to after appeal) raises no presumption of vindictiveness; defendant must show actual vindictive motive.

Bordenkircher Situation

• Bordenkircher v. Hayes (1978) — Prosecutor threatened to indict defendant on more serious charges if he refused to plead guilty; defendant rejected plea and was indicted. Held: no due process violation. The give-and-take of plea bargaining is permissible even under threat of more serious charges, so long as the charges themselves are legitimate.

Scope of Discretion

Prosecutors have unreviewable discretion over:

• Whether to charge at all (declination)
• What offenses to charge from available evidence
• What plea to offer (or not offer)
• Whether to seek the death penalty
• Whether to recommend a particular sentence

Policy

Separation of powers: The executive branch is constitutionally responsible for law enforcement. Judicial second-guessing of charging decisions would intrude on executive authority and undermine the adversarial system.

Practical necessity: Prosecutorial discretion allows the criminal justice system to focus limited resources on the most serious conduct and to individualize justice.

Critique: Discretion creates risk of discrimination, conscious or unconscious. The demanding Armstrong standard makes selective prosecution claims nearly impossible to win, leaving little accountability for racially disparate charging patterns.