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The Kansas City Star, which has covered a spate of wrongful convictions arising from prosecutorial misconduct in recent months, explores the pitfalls that come with divesting broad discretionary powers to prosecutors.

David Helling of the Star interviews current and former prosecutors as well as defense attorneys about the implications of allowing prosecutors to have total discretion in charging decisions, highlighting the ways that this can lead to injustices:

• Prosecutorial discretion means an alleged offense — say, marijuana possession — might bring criminal charges in one county but not in another.

• A prosecutor in one state might charge a felony, while another sees the identical case as a misdemeanor, or as no case at all. Standards for reaching different decisions in such cases are solely up to the prosecutor.

• Standards of evidence may vary among prosecutors. A fatal lack of evidence in one courthouse may be enough for charges in a different locale.

• Some prosecutors may lack the resources to pursue all possible cases or may make a determination that some types of cases are more important than others, allowing some criminals to escape punishment…

• The charging process itself, particularly in the federal system, can essentially allow prosecutors to set punishments. After a conviction, judges have little leeway to depart from sentences based on the charges that are filed.

Former U.S. attorney Todd Graves tells Helling, “Many times the charge is more important than the outcome. You charge someone with being a child molester and it doesn’t really matter if they win or lose.”

In a February, 2013 post we relayed the commentary of Professor Glen Reynolds of the University of Tennessee, who argues that an over-reliance on criminalization combined with prosecutors’ broad discretionary powers has created a climate where prosecutors can pursue unconstitutional prosecutions without reservation. The lack of accountability around those prosecutions is a common concern of both Reynolds and Helling, with Helling citing Reynolds for possible ways to reign them in:

In his essay, law professor Harlan [Reynolds] suggests removing prosecutors’ immunity, making them more accountable for their decisions. Or: “Perhaps the prosecution could be required to pay a defendant’s legal fees if he or she is not convicted,” he writes, as a check on charging marginal cases.

Helling determines that “comprehensive alternatives to prosecutorial discretion can be difficult to find,” however it doesn’t have to be the case that prosecutors enjoy no discretion. Reynolds seems to suggest that enforcing accountability for prosecutors and dialing back the range of prosecutable offenses would go a long way in curbing the problems laid out by Helling.

Read Helling’s article in full here.


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