Discretion in the criminal justice system refers to the capacity of court officials and law enforcement agents to make authoritative decisions in the absence of specified directives and controls. Legal scholar Kenneth Culp Davis emphasized that discretion in the criminal justice system provides prosecutors the freedom to choose what they will rely upon in determining whether government action will be taken against a suspect and how prosecution will proceed if criminal charges are filed.
Associated with discretionary decision-making is uncertainty about what case information, institutional constraints, and external forces influence prosecutors’ decisions. Unlike in other Western democratic countries, in the United States, prosecutors at both state and federal levels exercise wide latitude of discretion in deciding to prosecute, the level of criminal charges and number of counts filed, whether criminal charges are later dropped, pretrial detention recommendations, whether a guilty plea offer is accepted, and the terms of guilty plea settlements. In addition, prosecuting attorneys influence sentencing decisions through their discretion to recommend severity of punishment and motions for various departures from sentencing guidelines. The latter exercise of prosecutorial discretion rewards defendants who provide substantial assistance in arrest and conviction of other criminal defendants and for defendants who cooperate with the prosecutor by pleading soon after criminal charges are filed.
Legal scholars note that prosecutorial discretion is essentially unreviewable except by prosecutors internal to the prosecutor’s office. This broad, virtually unfettered scope of prosecutorial discretion in state and federal courts is derived from a series of Supreme Court decisions and federal and state appellate court holdings dating to 1883. As a result of court holdings, a U.S. prosecutor’s exercise of discretion is essentially free from judicial review. Thus, U.S. prosecutors occupy a central and powerful position in the criminalization process, from the decision to prosecute through sentencing. This article presents research on the variables that influence prosecutorial discretion in state and federal courts.
Qualitative Research on Prosecutorial Discretion
In the late 1960s, social scientists began studying the variables influencing prosecutors’ exercise of their discretion. Early research used ethnographic studies to describe the dimensions of prosecutorial discretion, especially the decision to file criminal charges. Using interviews with prosecuting attorneys, judges, and law enforcement officials, as well as participant observation of court officials, researchers found that seriousness of the alleged offense and evidentiary strength of the case increased the probability of prosecutors filing criminal charges.
David Neubauer’s research revealed the often tense relationship between prosecuting attorneys, who must make charging decisions in light of the probability of conviction, and police, who expect those arrested to be charged. At the center of this tension are different priorities. Rank-and-file police assume that their decision to arrest a suspect is factually accurate, while prosecuting attorneys must attend to determining the likelihood of success at trial, the legal arena where the government’s evidence against the defendant is tested against high legal standard of proof beyond a reasonable doubt. Even though the vast majority of criminal charges are disposed of via a guilty plea, prosecutors use assessments of their chance of winning at trial as the reference for deciding to charge a suspect with a crime. Rank-and-file police expect prosecutors to file charges against all suspects arrested, while prosecutors are concerned with their ability to obtain a conviction. Although the tension between police and prosecutors described by Neubauer applies to the relationship between rank-and-file police and prosecutors, other research points to a different relationship between prosecutors and specialized investigative agents.
Sociologist Boyd Littrell’s research observed that prosecutors are dependent on detective bureaus to build a prosecutable case based on evidence that will sustain trial disposition. Central to Littrell’s bureaucratic justice perspective of criminal prosecution is the combined role that law enforcement detective bureaus and prosecutors play in managing the construction of prosecution and adjudication. He argues that a prosecutor’s decision to charge is often surrounded by ambiguity arising from constructing past events. Specialized detective bureaus influence prosecutorial decisions by shaping the type of evidence presented to the prosecutor. Littrell postulated that prosecuting attorneys rely on specialized detective bureaus to manage the inherent uncertainty of reconstructing past events related to the alleged crime.
Early research that used ethnographic and case history methodology to study prosecutorial decision-making provides sound empirical foundations for subsequent research using quantitative methodologies. This early research provided rich descriptions of the scope and operation of prosecutorial discretion. By doing so, qualitative research stimulated quantitative investigation of the net effect of defendant characteristics and case information on prosecutorial discretion.
Quantitative Analyses of Prosecutorial Discretion
Research focusing on prosecutorial discretion shifted from primarily ethnographic methods to advanced statistical analysis in the late 1970s. A substantial number of studies contributed to further understanding of prosecutorial discretion at both the state and the federal levels of criminal adjudication. This body of research included analysis of prosecutorial discretion to file criminal charges, to nolle prosequi (drop charges), to file motions for departures from presumptive and advisory sentencing guidelines, and to impose three-strikes statutes. With enactment of the federal sentencing guidelines in 1987, a substantial body of research focused on the increasing latitude of discretion federal prosecutors’ exercise in determining sentencing outcomes by filing motions for substantial assistance departures.
Drawing from the bounded rationality theoretical perspective of decision-making in people-processing organizations, sociologist Celesta Albonetti theorized that case information that increases the uncertainty of obtaining a trial conviction would significantly increase the probability of prosecutors filing initial criminal charges and their decision to drop charges after indictment. She argued that type and strength of evidence, the victim– defendant relationship, warrantless arrests, and whether the victim provoked the alleged offense are related to prosecutors’ assessment of uncertainty of obtaining a conviction. As such, these variables are hypothesized to affect prosecutors’ exercise of charging discretion. Her analysis of assistant U.S. attorneys’ decisions to go forward with criminal charges in felony cases processed in the District of Columbia during 1974 supported her theory of uncertainty avoidance. Specifically, Albonetti found that the presence of exculpatory evidence and physical evidence exerts significant increases in the probability that criminal charges are filed. Consistent with expectations, the presence of corroborative evidence significantly reduces the probability that an assistant U.S. attorney files charges. Her research reveals that cases with one witness or cases in which the victim is the only witness significantly reduced the probability of prosecution, compared to cases with more than one witness. This finding is consistent with Littrell’s assertion that prosecutors’ assessment of uncertainty is heightened in cases with only one witness.
Albonetti’s study found that case information related to prosecutors’ assessments of uncertainty significantly affects their decision to discontinue prosecution. Prosecutors were more likely to file criminal charges in cases involving victims and defendants who are strangers. In cases involving defendants and victims who are acquaintances or intimates, prosecutors were significantly less likely to file charges, controlling for the type and strength of evidence. Cases involving victim provocation increase uncertainty of obtaining a conviction. As such, prosecutors are significantly less likely to prosecute. Taken together, these findings provide empirical support for the uncertainty avoidance theoretical perspective of prosecutorial exercise of discretion. These findings reveal how prosecutors use their wide discretion to manage uncertainty in deciding to prosecute charges and to drop charges after indictment. Controlling for the aforementioned variables, prosecutors were less likely to file charges against females, compared to males.
Cassia Spohn, Dawn Beichner, and Erika Davis Frenzel’s research on prosecutorial discretion in sexual assault cases in 1997 in Miami, FL, found that prosecutors were more likely to bring charges when the suspect used a weapon, when the victim was injured, and in cases involving acquaintances, relatives, or an intimate partner, compared to strangers. Their multivariate analysis indicated that the victim’s and suspect’s race and age did not exert significant effects on the prosecutors’ decisions to file charges. Spohn, Beichner, and Davis Frenzel’s analysis found no significant effect of physical evidence on prosecutors’ decisions to file charges. Also, they found that having a witness to the alleged incident and victim’s resistance to the sexual assault did not significantly affect prosecutors’ decisions to go forward with criminal charges.
Prosecutorial discretion influences sentence severity through charge reductions and guidelines departures. Lauren O’Neill Shermer and Brian D. Johnson’s study of charge reductions in U.S. federal district courts found that federal prosecutors were more likely to reduce felony charges for young White females, young Hispanic females, and older Hispanic females, compared to older White males. Compared to non-U.S. citizens, U.S. citizens were less likely to have charges reduced. The higher the number of filing charges, the defendant’s acceptance of responsibility, increases in offense severity, property charges, fraud charges, and the use of a weapon increased significantly the odds of a charge reduction. Noteworthy is their finding that defendant’s marital status and level of educational achievement had no significant effects on the odds of a charge reduction. Defendants charged with an immigration violation had a decrease in the odds of a charge reduction. O’Neill Shermer and Johnson’s research further indicates that prosecutors’ decisions to reduce charges significantly reduces length of imprisonment, controlling for defendant characteristics, type of offense, defendant’s criminal history, and departures from the federal sentencing guidelines presumptive sentence.
Federal prosecutors exert influence over sentencing by charge reductions and by departure motions for defendant’s substantial assistance to the government in the prosecution and conviction of other defendants. As noted earlier, federal prosecutors exercise a wide latitude of discretion in deciding to file substance assistance departures. These departures significantly reduce length of imprisonment, controlling for defendant characteristics, legally relevant case information, and process-related variables, such as whether the defendant pleads guilty and accepts responsibility for his or her illegal behavior. Research indicates that federal prosecutors are less likely to file a motion for a substantial assistance departure in cases involving Blacks or Hispanics, compared to Whites. Further research is needed to examine what accounts for this finding.
Political scientist Elsa Chen examined the variables influencing prosecutors’ decisions to avoid application of California’s “Three Strikes and You’re Out” law. California’s three-strikes law permits prosecutorial discretion in deciding to apply the law by allowing the prosecutor to dismiss or strike a prior felony conviction that would otherwise trigger application of the mandatory three-strikes sentence. Chen’s study of prosecutorial discretion in 56 of the 58 California counties found that prosecutors were less likely to dismiss a prior conviction for African American defendants, compared to White defendants. Consequently, African American defendants experienced greater exposure to three-strikes sentencing. She found that charges for serious or violent offenses significantly increased the odds of applying the three-strikes law. Charges for less serious property and drug possession offenses significantly reduced the chances that prosecutors applied the three strikes law. Moreover, she found that prosecutors in more politically conservative counties were more likely to apply the three-strikes law.
Final Thoughts
Research by sociologists, legal scholars, and political scientists reveal the broad scope and wide latitude of prosecutorial discretion in state and federal criminal adjudication. There is virtually no stage of the U.S. criminalization process that is untouched by prosecutorial discretion. The low visibility of prosecutors’ decision-making challenges research efforts to empirically examine the effects of defendant characteristics, case information, and political environment on the exercise of prosecutorial discretion. Thus far, qualitative and quantitative research indicates that prosecutors use their discretion to manage uncertainty in obtaining a conviction. Furthermore, research points to mixed finding of the relevance of defendant characteristics on prosecutors’ decisions to file charges, to discontinue prosecution after indictment, and to reduce charges.
References:
- Albonetti, C. A. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theory of discretionary decision making in felony case processing. Criminology, 24, 623–644. Retrieved from https://doi.org/10.1111/j.1745-9125.1986.tb01505.x
- Albonetti, C. A. (1987). Prosecutorial discretion: The effects of uncertainty. Law & Society Review, 21, 291–313.
- Chen, E. Y. (2014). In the furtherance of justice, injustice, or both? A multilevel analysis of courtroom context and the implementation of three strikes. Justice Quarterly, 31, 257–286. Retrieved from https://doi.org/10.1080/07418825.2011.649693
- Davis, A. J. (2007). Arbitrary justice: The power of the American prosecutor. Oxford, UK: Oxford University Press.
- Littrell, W. B. (1979). Bureaucratic justice: Police, prosecutors, and plea bargaining. Beverly Hills, CA: Sage.
- O’Neill Shermer, L., & Johnson, B. D. (2010). Criminal prosecutions: Examining prosecutorial discretion and charge reductions in U.S. federal district courts. Justice Quarterly, 27, 394–430. Retrieved from https://doi.org/10.1080/07418820902856972
- Ulmer, J., Kurlychek, M., & Kramer, J. (2007). Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime and Delinquency 44, 427–458. Retrieved from https://doi.org/10.1177/0022427807305853
- Wright, R., & Engen, R. (2006). The effects of depth and distance in a criminal code on charging, sentencing, and prosecutorial power. North Carolina Law Review, 84, 1935–1982.