Prosecutor Charging Discretion (2/28/13)

Recently in my Tax Fraud class at the University of Houston Law School, we covered the broad charging discretion the prosecutor has for federal tax crimes.  We noted that this broad discretion existed for federal crimes generally and probably, in most jurisdictions, for state crimes as well.  I have just reviewed the following article:  Reynolds, Glenn Harlan, Ham Sandwich Nation: Due Process When Everything is a Crime (January 20, 2013). Available at SSRN: http://ssrn.com/abstract=2203713, here. Professoror Reynolds' article deals with the same theme.  I recommend the article to students as a good short discussion of the problem and potential solutions.

Here are some excerpts:\

As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s office in the Southern District of New York was to name a famous person – Mother Teresa, John Lennon -- and decide how they could be prosecuted.: 

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her.  The crimes were not usually rape, murder or the other crrimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield:  Crimes like "false statement" (a felony up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years).  The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.  The result, however, was inevitable: "prison time."\ 

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This problem has been discussed at length in Gene Healy’s Go Directly To Jail: The  Criminalization of  Almost  Everything, and  Harvey  Silverglate’s  Three Felonies  A  Day. The  upshot  of  both  is  that  the  proliferation  of  federal criminal statutes and regulations has reached the point that virtually ever citizen, knowingly or not (usually not) is potentially at  risk for prosecution. That is undoubtedly true, and the consequences are drastic and troubling. 

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Most of us remain safe.   Prosecutors have limited resources, and there are political constraints on egregious overreaching.   And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because  of  politics  or  prejudice Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria. 

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[O]nce charged with a crime, citizens are in a tough position.  First, they must bear the costs of a defense, unless they’re indigent. Second, even if they consider themselves entirely innocent,  they  will  face  strong  pressure  to accept a plea bargain, pressure made worse by the modern tendency of prosecutors to overcharge with extensive “kitchen‐sink” indictments:  When facing a hundred felony charges, the prospect that a jury might go along with even one of them is enough to make a plea deal look attractive, something that many prosecutors count on.  Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be involved.   And prosecutors have no countervailing incentives not to overcharge.  The defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual  decision whether or not charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, that decision is probably the single most important event in the chain of criminal procedure.

As suspected, he makes the point evident from the title of the article that a prosecutor can get a grand jury to dance to the prosecutor's tune -- even indict the fabled ham sandwich.  He then proposes some possible remedies to mitigate the more egregious problems in virtually unlimited prosecutor discretion, including rejecting full bore prosecutorial immunity, providing a "loser pays" rule for criminal defense costs, banning plea bargains [not a likely solution], offering rejected plea bargains to the court before sentencing, and reconsideration of whether and which malum prohibitum crimes should bear criminal sanctions.