The decision of an independent prosecutor this week not to seek criminal charges against Attorney General Edwin Meese 3d has focused new attention on the broad and controversial power granted to American prosecutors in deciding who shall be brought to justice. Far more than in any other democracy, American prosecutors have almost unfettered authority to decide whom to charge, what crimes to identify, what penalties to seek, what bail to urge, what witnesses to call, what evidence to present, what persons to give immunity from prosecution, what plea bargains to make and what sentences to negotiate.
Indeed, if a prosecutor in West Germany had uncovered as much evidence of tax and other illegalities as the independent prosecutor James C. McKay said he had, the German would have to seek charges, said Albert W. Alschuler, a professor of law at the University of Chicago. "What the American prosecutor says is more important in the outcome of a criminal case than anything else in law or the Constitution," said Mr. Alschuler, a widely regarded expert on plea bargaining, and an opponent of it, who is the author of several law review articles on prosecutorial discretion. He added that another American prosecutor could have looked at the same facts as Mr. McKay and come up with an equally defensible decision to charge the Attorney General with felonies.
The discretion afforded American prosecutors is defended on the ground that it provides for case-by-case flexibility and ultimately more leniency for deserving defendants. But critics say it has been abused with considerations of race, class and political affiliation. Draft protesters, users of small amounts of marijuana and minor traffic offenders have challenged verdicts and sentences by showing that others were not prosecuted for similar crimes, and prosecutorial bias has been charged in jury selection and death penalty cases. The subject has grown so controversial in recent years that it has been the focus of more than 200 law review articles and 280 Federal court cases since 1985. That does not count the thousands of scholarly law articles, speeches and the cases in state and local courts. "It's a fundamental topic in the criminal justice system," said Philip B. Heymann, a professor of law at Harvard who was the Assistant United States Attorney General in charge of the criminal division from 1978 to 1981. Mr. Heymann, who heads the Center for Criminal Justice at Harvard, said prosecutors have the authority not to bring charges even when they think they can prove a crime has been committed. He noted that such decisions are necessary in part because there is so much crime in the United States; prosecutors could not possibly process all of it.
In perhaps the most controversial recent case on prosecutorial discretion, the Supreme Court, in McCleskey v. Kemp, last year upheld the death penalty for a black Georgia man accused of killing a white police officer. The defense introduced a statistical analysis of 2,000 Georgia murder cases showing that prosecutors were far more likely to seek the death penalty for black murderers than whites. The Court, in a 5-to-4 vote, said the evidence of discrimination had to be clear in each individual case, not just in a statistical study. "Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused," the Court said.
Defenders of broad discretion say that murder, rape and armed robbery are almost always prosecuted and that individual prosecutors who misuse their powers of choice can be impeached or not re-elected. But that does not normally help defendants singled out by prosecutors in a way that may be unfair but would not be considered abusive by the courts. William F. Weld, who resigned last spring as head of the criminal division in the Justice Department, said that the Reagan Administration has concentrated on prosecuting "high-impact cases." Those include white-collar crime and big narcotics cases. But he said there was vast variation among United States attorneys.
"Some prosecutors won't touch a bank fraud case unless it is over $25,000," said Mr. Weld, now a senior partner at Hale & Dorr in Washington. "Others love routine bank embezzlement cases because it fattens their conviction statistics." Increasingly, because of changing community standards, prosecutors are seeking charges for spouse beating and date rape, charges that were rarely pursued a decade ago. In routine assault cases, charges more often are filed when the match ups of size or number are uneven than when two apparent equals have a fistfight, legal experts said. The American Civil Liberties Union has often sharply criticized what it perceives as prosecutorial abuses even while favoring the system of discretion. John Powell, the group's legal director, said an expanding abuse involved prosecutors detaining defendants just to force confessions or unauthorized disclosures out of them.
Mr. Powell also criticized Mr. McKay, the independent prosecutor, for saying Mr. Meese was guilty of a crime but not giving the Attorney General his day in court to dispute it. Mr. Heymann of Harvard, however, said Mr. McKay's statements were proper because he had been asked by lawmakers if crimes had been committed. Mr. Heymann added that if a prosecutor thought a suspect would try to turn a lack of prosecution into a public exoneration, a prosecutor can properly state what laws appear to have been broken. Mr. Weld said Mr. McKay appeared to have followed Federal law-enforcement guidelines in his decision not to seek charges.The American Bar Association and Justice Department do have general standards to guide prosecutors in choosing which cases to pursue, including quality of evidence, extent of harm caused by the offense, motives of the complainant, community standards and cooperation of the accused in the apprehension of others. But some say such standards do not go far enough. Proposals include the kind of specific criteria now required of judges in sentencing, including an alleged criminal's prior record and specific evidence of intent to commit a crime. Some critics have proposed standardized bail and allowing individual citizens more easily to sue prosecutors for abuses of discretion. "There is no requirement to treat like cases alike," Mr. Alshuler said. He said discretion means a system that ultimately is more merciful, but that does not mean it should be so broad that "it is exercised in different ways by different people and by the same person depending on how heavy his calendar is that week."
This document was taken from The Law; Published: July 22, 1988 By Stuart Diamond found on the internet without a copyright.