I.

THE ROLE OF PROSECUTORS IN CHARGING DEFENDANTS

Prosecutors play a signiIicant role in the criminal justice system. While legislatures create
the law and judiciaries interpret the law, prosecutors have wide discretion in choosing what laws
to enIorce.
1
Prosecutors must decide when to Iile charges against a deIendant, what charges to
bring, and, iI necessary, when to drop charges. The Supreme Court has consistently held that
these decisions generally rest entirely within the prosecutor`s discretion.
2
The Court has also
held that the conscious use oI this discretion does not, in itselI, represent a denial oI equal
protection, unless the discretion deliberately rested on unjustiIiable standards such as race and
religion.
3

While most commentators agree that prosecutors should be entitled to some discretion,
4

many argue that prosecutorial discretion has expanded in recent decades,
5
leading to a greater
potential Ior abuse. Some even suggest that race and gender now inIluence a prosecutor`s use oI
discretion.
6

This paper will Iirst discuss how prosecutorial discretion has expanded. That will be
Iollowed by a discussion oI whether prosecutors have used this expanded discretion to allow
unconstitutional Iactors such as race and gender to inIluence charging decisions. The third
section will look at disparities in charging decisions among prosecutors over time and across
geographic areas. The Iourth section will consider how ever-expanding discretion has impacted
the treatment oI deIendants and led to increasing incarceration and the Iinal section concludes.
A. How has prosecutorial discretion expanded?
Prosecutors have long enjoyed independent discretion in 'employ|ing| the Iull machinery oI
the state against an individual.
7
This power, employed by a single government oIIicial, has
great potential Ior abuse. Justice Robert Jackson described the prosecutor`s discretion in
charging as 'most dangerous
8
and others have described it as 'tyrannical.
9

In general, prosecutorial discretion has increased in three ways: (1) prosecutors have more
power, (2) decisions by prosecutors are more immune Irom oversight, and (3) prosecutors are
more immune to ethical restraints.
10
This multi-Iaceted expansion has been driven by a
combination oI Iactors, including 'legislative enactments, prosecutorial initiatives, and judicial
acquiescence.
11


1
44 No. 1 Crim. Law Bulletin ART 2.
2
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
3
Oyler v. Boles, 368 U.S. 448, 456 (1962).
4
See, e.g., JAMES E. JOHNSON ET AL., BRENNAN CTR. FOR JUSTICE, Racial Disparities in Federal Prosecutions
3 (2010),
http://www.brennancenter.org/sites/deIault/Iiles/legacy/Justice/ProsecutorialDiscretionreport.pdI?nocdn1
(supports the 'conscious, |and| inIormed use oI the discretion despite the presence oI racial disparities).
5
Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393 (1992).
6
JOHNSON, supra note 4, at 4.
7
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)
8
Robert H. Jackson, The Federal Prosecutor, 31 J. CRIM. L. & CRIMINOLOGY 3, 5 (1940).
9
Henderson v. United States, 349 F.2d 712, 714 (D.C. Cir.1965) (Bazelon, C.J., dissenting).
10
Gershman, supra note 5.
11
Id. at 406.
Congress, acting out oI public pressure to be tough on crime, has given prosecutors greater
power over deIendants through a myriad oI statutes.
12
These statutes give prosecutors more
options in deciding how to charge a deIendant.
The courts, out oI respect Ior the separation oI powers, have largely deIerred to the actions oI
prosecutors. The court in United States v Cox held 'that the courts are not to interIere with the
Iree exercise oI the discretionary powers oI the attorneys oI the United States in their control
over criminal prosecutions.
13
Subsequent decisions Iollowed on this theme and held that courts
should not be able to compel prosecutors to Iile charges,
14
that prosecutors are not required to
bring charges as soon as probable cause has been established,
15
that private citizens lack standing
against prosecutors who decide not to prosecute,
16
that courts cannot direct prosecutors to select
certain charges,
17
that prosecutorial discretion "not reviewable Ior a simple abuse oI
discretion,"
18
and that there is no judicial remedy Ior arbitrary prosecutorial decisions.
19

As the courts have stepped away Irom overseeing prosecutorial discretion,
20
abuse by
prosecutors has become more commonplace.
21
These abuses include overcharging crimes,
22

improper joinder,
23
vindictiveness,
24
coercive dismissals,
25
plea bargaining abuses,
26
and
immunity violations.
2728

This paper next looks at the demographic bias which now exists within the new world oI
expansive and unIettered prosecutorial discretion.
B. Where does bias and disparate treatment come into prosecutorial discretion?
With increasing powers Irom legislatures and decreasing oversight Irom judiciaries,
prosecutors are now more able to intentionally and unintentionally allow their own personal
biases to inIluence their discretion. Prosecutors` racial biases have repeatedly been shown to
exist in death penalty cases.
29
The Supreme Court, when presented with empirical research

12
Including RICO, Money Laundering Act, Bail ReIorm Act, Criminal ForIeitures Act, Career Criminal Act,
Comprehensive ThriIt and Bank Fraud Act, Victims oI Child Abuse Act.
13
United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965).
14
Inmates oI Attica Corr. Facility v. RockeIeller, 477 F.2d 375, 380 (2d Cir. 1973).
15
United States v. Lovasco, 431 U.S. 783, 789 (1977).
16
Tonkin v. Michael, 349 F. Supp. 78, 81 (D.V.I. 1972).
17
U.S. v. Zabawa, 39 F.3d 279 (10th Cir. 1994).
18
U.S. v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).
19
U.S. v. Armstrong, 48 F.3d 1508 (9th Cir. 1995).
20
See, e.g., United States v. Rexach, 896 F.2d 710 (2d Cir.1989) (prosecutor`s reIusal to recommend leniency is
not reviewable), cert. denied, 111 S.Ct. 433 (1990).
21
This abuse also occurs because prosecutors oIten to not have any superiors, ABRAHAM S. GOLDSTEIN, THE
PASSIVE JUDICIARY: PROSECUTORIAL DISCRETION AND THE GUILTY PLEA 4 (1981).
22
For example, the rise oI plea bargaining in the justice system incentivizes prosecutors to overcharge, A. W.
Alschuler, The Prosecutors Role in Plea Bargaining, 36 U. CHI. L. REV. 50 (1968).
23
United States v. Lane, 474 U.S. 438 (1986).
24
Bordenkircher v. Hayes, 434 U.S. 357 (1978); United States v. Goodwin, 457 U.S. 368 (1982).
25
Town oI Newton v. Rumery, 480 U.S. 386 (1987).
26
Mabry v. Johnson, 467 U.S. 504 (1984); North Carolina v. AlIord, 400 U.S. 25 (1970).
27
United States v. Mandujano, 425 U.S. 564 (1976); Ricketts v. Adamson, 483 U.S. 1 (1987).
28
List oI oIIenses Irom Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 408 (1992).
29
See, e.g., United States v. Wiley, 492 F.2d 547, 555 (D.C. Cir.1974) (Bazelon, J., concurring); David C.
Baldus, George Woodworth & Charles Pulaski, Arbitrariness and Discrimination in the Administration of the Death
Penaltv, 15 STETSON L. REV. 133 (1986); Michael L. Radelet and Glenn L. Pierce, Race and Prosecutorial
Discretion in Homicide Cases, 19/4 LAW & SOC`Y REV. 587 (1985).
showing this bias, held, in a display oI great acquiescence to prosecutors, that statistics did not
prove discriminatory administration oI the death penalty.
30

While studies have shown that racial bias aIIects the prosecutor`s discretion to seek the death
penalty, it is less clear whether racial bias plays a role in charging decisions generally.
31
With
the available research, one is unable to deIinitively state that racial bias plays a role in charging
decisions.
However, studies have linked the impact oI a deIendant`s gender to the prosecutor`s use oI
discretion. AIter controlling Ior other Iactors, prosecutors are more likely to Iile charges against
men than women,
32
and generally charge men with more serious crimes than women.
3334

Outside oI race and gender, other non-legal Iactors have been shown to inIluence a
prosecutor`s use oI discretion. For example, iI the deIendant has a prior Ielony conviction,
35
and
iI the victim made poor decisions leading up to the crime.
36
Sometimes non-legal Iactors are
better predictors oI charging decisions than legal Iactors.
37

Now that this paper has identiIied that a prosecutor`s discretion may be inIluenced by a host
oI non-legal Iactors, including race (in the case oI capital cases) and gender, this paper turns to
identiIying whether expansive prosecutorial discretion has led to disparities in charging decisions
across time and geography.
C. Where have disparities in charging decisions been identified over time and across
geographic boundaries?
As the discretion aIIorded to prosecutors has widened, statistics show that there has been a
corresponding growth in the number oI charges that prosecutors choose to Iile. For example,
Irom 1984 to 1994, Iederal Ielony Iilings increased by about 32 percent and state Ielony Iilings

30
McCleskey v. Kemp, 481 U.S. 279, 297 (1987)
31
Marvin d. Free, Jr., Race and Presentencing Decisions in the United States. A Summarv and Critique of the
Research, 27/2 CRIM. JUST. REV. 203 (2002) (15 oI 24 studies analyzed Iound that race had no eIIect on charging
decisions); Besiki Kutateladze, Vanessa Lynn & Edward Liang, Do Race and Ethnicitv Matter in Prosecution?. A
Review of Empirical Studies, VERA INST. OF JUST., available at http://www.prisonpolicy.org/scans/vera/race-and-
ethnicity-in-prosecution-Iirst-edition.pdI (reviewed 34 studies and could not deIinitively conclude that prosecutors
always treat blacks and Latinos more harshly than whites); but see, Elsa Y. Chen, The Liberation Hvpothesis and
Racial and Ethnic Disparities in the Application of Californias Three Strikes Law, 6/2 J. OF ETHNICITY IN CRIM.
JUST. 83 (2008) (Iinding that black deIendants were more likely to be charged with and receive third-strike
sentences than white deIendants Ior oIIenses which can be prosecuted as a Ielony or misdemeanor).
32
Celesta A. Albonetti, Prosecutorial Discretion. The Effects of Uncertaintv, 21/2 LAW & SOC`Y REV. 291
(1987).
33
T.D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing. An Investigation of
the Hvdraulic Displacement of Discretion, 78 J. OF CRIM. LAW AND CRIMINOLOGY 155 (1987).
34
Bruce Frederick & Dan Stemen, The Anatomv of Discretion. An Analvsis of Prosecutorial Decision-Making,
Final Report to the National Institute of Justice 5 (Grant No. 2009-IJ-CX-0040 Sept. 2011).
35
Cassia Spohn & David Holleran, Prosecuting Sexual Assault. A Comparison of Charging Decisions in Sexual
Assault Cases Involving Strangers, Acquaintances, and Intimate Partners, 18 JUST. Q. 651 (2001).
36
R.F. Kingsnorth & R.C. MacIntosh, Domestic violence. Predictors of victim support for official action, 21
JUST. Q. 301 (2004); J.W. Spears C.C. Spohn, The effect of evidence factors and victim characteristics on
prosecutors charging decisions in sexual assault cases, 14 JUST. Q. 501 (1997); E.A. Stanko, The impact of victim
assessment on prosecutors screening decisions. the case of the New York Countv district attornevs office, 16 LAW
& SOC`Y REV., 225 (1982), J. Schmidt & E. Hochstedler Steury, Prosecutorial discretion in filing charges in
domestic violence cases, 27 CRIMINOLOGY 487 (1989).
37
Frederick, supra note 34 at 7.
increased by 64 percent over the same time period.
38
From 1994 to 2008, state Ielony Iilings
continued to grow by an additional 37 percent.
39
There has not been a corresponding increase in
arrests, thereIore, the rate oI Iilings per arrest has risen dramatically.
40

Thus Iar, there has been very little research comparing the use oI discretion by prosecutors
within the same oIIice or across geographic boundaries.
41
One study examines prosecutorial
decisions Irom two locations, but the researchers aggregate the data and prevent comparison.
42

Another study compares two unidentiIied jurisdictions with similar demographics and Iound
very slight diIIerences between the prosecutors.
43
The prosecutors Irom both prosecutors tended
to either wholly accept or reject all the charges presented.
44
Further research should be done on
whether expansive prosecutorial discretion has led to disparate treatment oI deIendants in
diIIerent parts oI the country.
D. How has expanded prosecutorial discretion led to increasing incarceration?
As prosecutorial discretion has expanded through more power and less oversight, the biases
oI prosecutors have crept into their charging decisions.
45
With this seemingly unbounded
discretion, prosecutors have also charged many more deIendants per arrest than beIore.
46

During this time oI expanding prosecutorial discretions, prisons have also grown
enormously.
47
ProIessor John PIaII, in looking to the source oI this growth, points the blame to
prosecutors.
48
Increases in prison population could be attributable to longer sentence lengths,
parole releases, or simply an increase in arrests.
49
While prison admissions have grown 35
percent Irom 1994 to 2008, the total number oI arrests has actually Iallen during the same
period.
50
In addition, sentence lengths and parole releases have not changed signiIicantly and
have only played minor roles in prison growth.
51
The rise in prison admissions, ProIessor PIaII
concludes, has been Irom a rise in Iilings by prosecutors, which have also risen 35 percent during
the aIorementioned time period.
52


38
Tom Stacy & Kim Dayton, The Underfederali:ation of Crime, 6 CORNELL J.L. & PUB. POL'Y 247, 253
(1997).
39
John F. PIaII, The Causes of Growth in Prison Admissions and Populations 10 (Working Paper No. 1884674,
2011), available at http:// papers.ssrn.com/sol3/papers.cIm?abstractid1884674.
40
Id.
41
Frederick, supra note 34.
42
Cassia Spohn & David Holleran, Prosecuting Sexual Assault. A Comparison of Charging Decisions in Sexual
Assault Cases Involving Strangers, Acquaintances, and Intimate Partners, 18 JUST. Q. 651 (2001)
43
Frederick, supra note 34 at 181.
44
Id.
45
InIra sec B
46
InIra sec C; see, e.g., Melissa Crow, Federal Judges Remind Government to Consider Prosecutorial
Discretion, IMMIGRATIONIMPACT.COM, http://immigrationimpact.com/2012/12/19/Iederal-judges-remind-
government-to-consider-prosecutorial-discretion/ (discusses judges who have been 'reminding government
attorneys that they can exercise prosecutorial discretion instead oI litigating every case).
47
PIaII, supra note 39.
48
PIaII, supra note 39.
49
PIaII, supra note 39.
50
PIaII, supra note 39.
51
PIaII, supra note 39 at 35.
52
PIaII, supra note 39 at 4; see also William Sabol, Implications of Criminal Justice Svstem Adaptation for
Prison Population Growth and Corrections Policv 18 (2011) (unpublished manuscript) available at
http://www.albany.edu/scj/documents/SabolManagingPopulations000.pdI.
E. Conclusion
Through legislative mandate and judicial acquiescence, prosecutors have grown in recent
times into an autonomous Iorce oI unbounded discretion, directing enIorcement within the
criminal justice system. With this discretion, we have seen racial, gender and other biases
intentionally or unintentionally aIIect their decision-making. Prosecutors have also used this
discretion to charge more and more deIendants than beIore, which, in turn, has led to greater
levels oI incarceration.