Prosecutorial discretion–WTR

American Prosecutors’ Powers and Obligations in the Era of Plea Bargaining. Darryl K. Brown [University of Virginia School of Law].

I. Introduction American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.