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The court comes to school: lessons on prosecutorial discretion

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4 Responses

  1. Orin Kerr says:

    Interesting post. A question, though — can you explain a bit why you think this case suggests that “more efforts to regulate prosecutorial charging decisions might be overdue”? I’m not familiar with Shondel, but off the top of my head I would think room for good faith disagreement as to how such a case should be charged would be an argument for prosecutorial discretion rather than an argument for judicial control.

  2. Alice Ristroph says:

    Thanks for the question. First, I’d note that “judicial control” is not necessarily the only or best way to regulate prosecutorial discretion. One interesting alternative might be guidelines for charging decisions, developed by sentencing commissions and/or codified by legislatures (analogous to sentencing guidelines); Ron Wright discusses some efforts along these lines in a recent symposium contribution:

    http://www.columbialawreview.org/articles/index.cfm?article_id=767

    On the broader question of whether prosecutorial charging discretion should be regulated at all, I suppose it’s a question of whether we’re troubled by sentencing disparities that are produced by “good faith” disagreement rather than racial or other forms of bias. It seems to me that many of the sentencing disparities traceable to *judicial* discretion are also products of good faith disagreement — different judges disagree, in good faith, as to what the appropriate sentence should be. If such disparities are cause for reform notwithstanding their origins in good faith disagreement, it seems that sentencing disparities traceable to charging decisions might be similar targets for regulation.

  3. Orin Kerr says:

    Thanks, Alice. Statutory guidelines for charging decisions sound promising; in a properly designed criminal law system, the statutes themselves might even be those guidelines.

    At the same time, I don’t think the issue is whether sentencing disparities are the product of good faith disagreement or something else. As I see it, the key question is whether discretion is exercised in a way that reflects the core values of the citizenry. This makes judicial discretion and prosecutorial discretion somewhat different, I would think: my guess is that prosecutors will tend to be much more politically accountable than judges, and will therefore tend to reach decisions more in accord with public opinion than judges.

  4. katieappliestocollege says:

    Is prosecutorial discretion a good thing because it is likely to accord with public opinion, or is it just not as bad a thing as judicial discretion?

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