Federal Prosecutorial Discretion

When the Department of Justice (DOJ) decides whether to pursue a case, their discretion comes from the Take Care Clause from Article II of the United States Constitution. The provision requires the president to take care to execute the laws of the country faithfully, so when a new administration comes in it can make a determination as to where to focus and how to enforce criminal laws. Due to limited resources, as the priorities change a federal prosecutor has wide discretion in deciding which crimes to pursue, as long as there is probable cause to bring a case before a grand jury. That discretion extends to a prosecutor’s ability to negotiate diversion agreements and guilty pleas, make sentencing recommendations, and provide immunity.

Limits 

Charging decisions must take into account requirements related to equal protection and due process, within the scope of a prosecutor’s discretion. Likewise, rules of professional responsibility call out statutory provisions that require following certain protocols, as well as a duty for prosecutors to act when encountering a wrongful prosecution. In general, it can be said that any limits on prosecutorial discretion lean toward a prosecutor’s bringing charges, not their decision to decline them.

The Fifth Amendment

The Fifth Amendment to the Constitution does limit a prosecutor in some ways, in that it requires a grand jury indictment for felony offenses. That means a grand jury must be presented with enough evidence to say that there is probable cause to believe a felony offense has been committed. Additionally, the Fifth Amendment:

• Does not allow for double jeopardy (charging someone for the same crime twice);
• Requires that no one be deprived of life, liberty, or property without experiencing due process;
• Requires no selective prosecution based on arbitrary classifications such as race or religion;
• Prohibits vindictive prosecution based on retaliatory justifications.

Cloudy Requirements

Prosecutors are not only authorized, but are required to bring cases involving particular civil rights violations. Similarly, The DOJ has been instructed to pursue cases brought to them when Congress refers someone for contempt. However, the DOJ has taken the stance that these requirements cannot supersede prosecutorial discretion, and the Supreme Court has not taken a stand on the matter.

Another murky matter lies in a judge’s ability to accept or reject a plea agreement. If the prosecution agrees to lessen or drop charges, as prosecutorial discretion allows, the ability of a judge to reject the agreement is in question.  It all boils down to the fact that there are no absolutes here.

Fighting Federal Charges

Anyone facing federal charges knows how devastating a conviction can be. The dedicated and experienced Las Vegas criminal defense attorneys at Lobo Law always fight for the best possible outcomes for you. To discuss, schedule a confidential consultation in our Las Vegas office today.

Source:

congress.gov/crs-product/LSB11326