Prosecutorial Discretion: Benefits, Detrimental Impact, and Solutions

Suffice to say, discussing matters related to race in the U.S. is intense and deserves a dialectic analysis involving self-interrogation whereby a personal and social transformation can occur. These principles are too important to discount when examining the racial disparities in the U.S. criminal justice process.

The United States incarceration rate per capita exceeds many nations at 655 prisoners per 100,000 population—El Salvador (604) is a close second. Current U.S. estimates suggest that over 80 percent of all criminal defendants qualify as “indigent,” meaning that they cannot afford to hire a lawyer.[1] These numbers are unsettling.

Moreover, the People’s Policy Project concluded in a 2018 analysis that mass incarceration in the United States, in effect, is “a system of [incarcerating] lower-class men.” Further concluding that the U.S. criminal justice system “disproportionately imprisoned Black men—since they are far more likely to be lower class than white men.” 

From arrest and initial charges to sentencing decisions by judges, the treatment of African Americans in the criminal justice process is atrocious. Undoubtedly, a subject that often amasses intense debate. However, through discussion, society has an opportunity to move from symbolic representations to more substantiative transformations.

In the U.S., the prosecution—the government’s attorney—controls the initiation and direction of the criminal process, which means that the prosecutor controls whether to file criminal charges, what criminal charges to file, and against whom charges should be brought. A prosecutor’s discretion to choose the initial charges determines the penalties available during plea negotiations.[2] Here, the initial plea offer substantially impacts whether a defendant will agree to a disposition or set a matter for trial.

As a result, felony crimes may change to misdemeanors, a non-jailable offense, or result in a case dismissal, occurring without requiring an entirely new judicial process. Thus, prosecutorial discretion does have some benefits. 

However, there is a downside. Criminal case studies examining federal court outcomes have pinpointed substantial racial disparities in judges’ sentencing decisions. Specifically, Black defendants are incarcerated more frequently and receive longer sentences than white defendants.[3]

Because prosecutors possess discretionary powers to control the initiation and direction of the criminal process for criminal defendants, communities must remain active in the election of their local and state attorneys and the Presidential election. Further, communities must press their legislature, state attorneys, district attorneys, and judges to collect data about arrests, charging decisions, and plea bargaining. Sentencing data gathering already exists in most, if not all, jurisdictions.

The Fifth and Sixth Amendments provide the right to counsel. However, many low-income Americans still face difficulties in the adjudication process; specifically, Black Americans. 

Article II, Section 3 of the Constitution provides that the president “shall take care that the laws be faithfully executed.” Keep in mind that U.S. Attorneys are appointed by the U.S. President and work under the direction of the Attorney General at the Justice Department. 

In Inmates of Attica Correctional Facility v. Rockefeller, the Court upheld this discretionary power by citing separation of powers concerns that limit judicial power over the charging decisions of federal prosecutors. 

But citizens ought not to fret, U.S. Attorney’s Manual § 9-27.230 advises federal prosecutors to weigh nine relevant considerations when assessing the federal interest in a case. Contrarily, the Court in Inmates of Attica rejected any oversight from a judicial clerk validating a prosecutor’s good faith decision.

Article III, Section 1 of the Constitution of the State of Montana, provides the same discretionary powers. In Guymon v. Corrigan, the Montana Supreme Court held that “county attorneys have broad discretion to determine whether to prosecute an alleged offender and what offense to charge. Decisions of a county attorney to prosecute or not involve the exercise of discretion and judgment.”[4] Importantly, consider that prosecutorial exclusivity is not usually prone to judicial review. 

However, Article II, section 4 of Montana’s Constitution also extends the boundaries of equal protection. The general equal protection guarantee of Article II, Section 4, requires that “persons similarly situated with respect to a legitimate governmental purpose of the law must receive like treatment.” The language “recognizes human dignity as a dimension of, or corollary to, the concept of equal protection of the law.” Gazelka v. St. Peter’s Hospital. The section further widens the protected class to encompass race, color, sex, culture, social origin or condition, and political and religious ideas. 

Undoubtedly, broad prosecutorial discretion in charging decisions may very well decide how the law is applied in a community. Without collection and analysis of relevant data, an effective measure is likely nonexistent and unenforceable by the courts. Therefore, some level of accountability is warranted.

Equally important is the public’s request for prosecution. For example, in February 2020, 25-year-old Ahmaud Arbery, a Black jogger, was chased by three white men and shot dead. Gregory McMichael, and his son Travis, along with William Roddie Bryan, were charged with malice murder and several other counts, nearly three months after Arbery’s death.  

Gregory McMichael worked as an investigator for Brunswick Judicial Circuit District Attorney Jackie Johnson’s office before retiring. Waycross Judicial Circuit Disctrict Attorney George Barnhill’s son was a current assistant district attorney in Johnson’s office and had previously worked with McMichael. It is clear that conflicts existed, and prosecutorial discretion permitted the extremely long delay, denial, and obstruction of justice for Arbery. The lack of charges for three months is a straightforward representation of irresponsible prosecutorial discretion.

Under Inmates of Attica, neither a grand jury nor a court can force a prosecutor to effectuate an indictment against their wishes. Thus, if not for the community pressure coupled with the leaked video, there would have been a further delay in the prosecutor’s charging decision for Arbery.

Legally, the local district attorney’s office determines the charging and plea-bargaining decisions. Here, prosecutorial discretion is quite broad, and charges must possess probable cause. Although judges do review plea bargains, in practice, judges rarely reject them.[5] In many respects, judges want parties to negotiate dispositions with little interference from the bench. 

“Prosecutors exercising their discretion may, like judges when imposing a sentence, be subject to implicit biases that adversely impact certain types of defendants.” [6] For example, “prosecutors may consciously, or subconsciously, perceive race as an aspect of criminality. “Add constraints on information, time, and budgets” and prosecutors may only rely on their inclinations in their decision making.[7]

The good news is that an empirical remedy exists to hold prosecutors and elected District Attorneys accountable. States like Michigan, and Massachusetts have already commenced establishing the recording systems, and analysis necessary to formulate where their respective jurisdiction falls on the spectrum of abuse.

In Washtenaw County, Michigan, “a report from the group Citizens for Racial Equality in Washtenaw found that Black people in the county are significantly more likely to be charged with felonies than white people for the same crimes.” 

In 2016, Massachusetts Supreme Judicial Court Chief Justice Ralph Gants asked Harvard researchers to “take a hard look at how we can better fulfill our promise to provide equal justice for every litigant.” After gathering the raw numbers, “Harvard Law School’s Criminal Justice Policy Program’s study found that Black incarcerees received more severe charges, harsher sentences, and less favorable outcomes than their white counterparts.” Gathering the requisite empirical data like Massachusetts and Michigan helps to mitigate the disparate outcomes of charging decisions and plea bargains. 

In essence, diving into the issues hindering the U.S. from moving forward should not be seen as a personal attack or anti-American. Instead, this is an opportunity for the nation to come together, fix its problems, and move forward—wishful thinking, likely. Misery still loves company, and influence through division is still an attractive strategy for those who employ it.

– D. Horton


[1] See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases: A National Crisis, 57 Hastings L.J. 1031, 1034 (2006).

[2] Shermer & Johnson, supra note 48, at 395; Ronald F. Wright & Rodney L. Engen, Charge Movement and Theories of Prosecutors, 91 MARQ. L. REV. 9, 9-10 (2007).

[3] See, e.g., David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts, 44 J.L. & ECON. 285, 306 (2001) (finding that Black and Hispanic defendants receive substantially longer sentences than white defendants and are also more likely to be incarcerated).

[4] 2016 MT 3N, ¶ 10, 383 Mont. 542, 369 P.3d 353.

[5] See Michael M. O’Hear, Sentencing Policies and Practices in Wisconsin, OXFORD HANDBOOKS ONLINE 7 (Mar. 2016).

[6] Lauren O’Neill Shermer & Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts, 27 JUST. Q. 394, 398 (2010).

[7] Id.

Suggested Readings

A Judge Asked Harvard to Find Out Why So Many Black People Were In Prison. They Could Only Find 1 Answer: Systemic Racism

Black citizens in Washtenaw County more likely to face felony charges, says new report

If you don’t believe systemic racism is real, explain these statistics

21 more studies showing racial disparities in the criminal justice system

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