Discretion and the Criminal Justice System

Decision to Charge

What is discretion?

·         Legitimate authority—board area in which to choice to enforce laws or not

·         Limited oversight of choices by courts or those in prosecutor’s office

·         No explanation of choice required

Potential solution to problem of too much prosecutorial discretion?

·         Have prosectuor’s offices themselves come up with additional official policies and prosecutors. May require more paperwork, but gives you better data.

Linda RS v. Richard D US 1973

·         Appellant alleged discriminatory application of child neglect statute.

·         TX said it applied only to children born in wedlock.

·         Richard D has refused to pay child support, Linda is mom of illegit child.

·         Holding: Plaintiff can’t force the government to prosecute. In this case the π has no standing to bring suit. Instead, a ∆ hurt by law would have to bring suit (e.g. father of legitimate child)

·         Private citizen lacks cognizable interest in criminal prosecution or non-prosecution of another.

·         Dissent: State is under-protecting a specific class.

Attica 2^nd Cir. 1973 p1011 – Admin is usually subject to judicial review selective prosecution

·         Alleged that police & corrections intentionally killed some inmates without provocation, beat them, and withheld medical assistance.

·         These crimes aren’t being investigated.

·         Unlike Linda RS – inmates suffered direct physical injury at the hands of those they want prosecuted.

·         Inmates have been prosecuted for their roles in the riots à discriminatory enforcement.

·         Holding: Separation of powers says judiciary shouldn’t force prosecution.

·         Major problems would arise from taking away prosecutorial discretion, forcing prosecutors to open files, reveal why/how they’re using their discretion

United States v. Armstrong US 1996 (equal protect tion clause via heightened scrutiny) See also Melesky death penalty

·         D’s allege they were selected for prosecution because they’re black.

·         In all of the office’s drug cases, D’s were black.

·         D’s wanted discovery for 3 years of crack & guns cases

·         Issue: determine appropriate standard for discovery for a selective prosecution case

·         Holding:  1) Required threshold for discovery is a credible showing of different treatment of similarly situated persons. 2) Need to show intent—purposeful discrimination by officials

·         So D’s must show evidence of nonblacks who weren’t prosecuted to even get discovery. ∆ did not do this. Leaves ∆ in catch-22—need discovery to show sufficient cause to get discovery

Conclusions: 2 huge problems—1) massive prison population, 2) disproportionate impact on blacks (6x rate of whites) and inner city communities

·         Complicated factors:

o    Policing strategies (more “outdoor crimes” in inner city)

o    Drug usage rates similar, but higher levels of violent crime due to discrimination, bad opportunity structure

o    Drugs are used as proxy prosecution for suspected more violent offenses

o    Decreased deterrence from reduce stigma when crime becomes the norm

Plea Bargaining

Requirement for pleas

must be 1) voluntary 2) knowingly entered into (see Brady)

2 categories of pleas: 1) charge bargaining (lesser charge), 2) sentence concessions

·         Note: different from guilty plea which can be entered at any time

Policy

Why would one plead guilty without a plea bargain?

            -expect concession from the judge

            -want to avoid an embarrassing trial

            -want to start serving sentence immediately

If terms of a plea bargain aren’t honored by the prosecution, then the D can vacate the plea.

Pros of plea bargaining system:

·         Makes things more certain for D’s and prosecutors

·         More efficient for open and shut cases

·         Better for grey-area cases where an intermediate solution is better than 1^st degree murder or acquittal.

Cons:

·         Unequal information of D and prosecutor

·         Agency costs – prosecutor may not be representing the public, might be lazy

·         Potential penalties for D are so much greater than the prosecutor.

Grounds for a D to challenge plea bargain?:

·         Counsel was incompetent (difficult claim)

·         Failure to inform D of all things D needs to be informed of: constitutional rights, consequences of pleading, adequate factual basis.

*D has to be told of deportation consequences about pleading guilty

Brady v. United States, 397 U.S. 742 (1970), p. 1025 (S.Ct. formally accepts p-b)

1.       Summary:  Petitioner was facing the death penalty in connection with his kidnapping charge and switched his plea to guilty from not guilty; argues plea was not voluntary because he faced the death penalty if he exercised his right to a jury trial.

2.       Ruling:  Conviction affirmed. Waivers of constitutional rights must be voluntary and must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences – no problem on both counts. P was represented by competent counsel. State may not produce a plea by actual / threatened physical harm or mental coercion, but this did not happen here; also no evidence that Brady could not have rationally weighed advantages. Plea-bargaining creates a mutuality of advantage to defendants and prosecutors – for d’s, exposure is reduced, correctional process can start, and practical burdens of trial eliminated; for state, prompt punishment, and conservation of judicial / prosecutorial resources. Record supports the conclusion that Brady’s plea was intelligently made.

Notes after Brady

i.      For guilty plea to be valid, it must be the product of a knowing and intelligent choice, and must be voluntary in the sense that it does not result from any threats or promises other than those involved in the plea agreement. Trial judge typically explains to defendant the elements of the offense, the potential sentence, and the principal rights being waived (privilege against self-incrimination, right to jury trial, and right to confront accusers).

ii.      Extent – at time of Brady, 70-85% of felony convictions were obtained by guilty plea; now – about 90%, and 95% in federal courts.

Santobello v. New York – if prosecution fails to honor commitments made to defendant in exchange for guilty plea, defendant must be able to withdraw the plea. (Prosecutor can get around this by promising to recommend a particular sentence – then, as long as he recommends, if the judge doesn’t adopt, state is still fine.)

iii.      Trial penalty imposed on defendants substantial – sentences after jury trial are on average 3x longer than sentences imposed in comparable cases after a plea.

iv.      PA approach – defendants receive no inducement to plead guilty, but gain sentencing concessions by waiving right to jury and accepting a bench trial (still retain right to confront, to cross-examine, to appeal, etc.) – nearly all American jurisdictions reject this approach, however.

v.      Justification for different sentences for same crime if plea-bargained or not? Judges – “He takes some of my time; I take some of his.”

vi.      Bargaining argument – D doesn’t lose his constitutional rights; rather bargains them away – worth less than the leniency he gains by “selling” them to prosecution.

1.       D trading right to force a trial to prosecutor’s right to seek the maximum sentence.

vii.      Structural problems – public and defendant act through agents (prosecutor and attorney) in arriving at plea-bargaining. Problem because they may have individual interests that run counter to that of the public and / or the defendant.

ii.      Bordenkircher v. Hayes (S.Ct. 1978, p. 1036)

·         Summary: D indicted for uttering forged instrument for $80, punishable 2-10 years prison. Prosecutor offered recommend 5-year sentence for guilty plea, or otherwise would seek indictment under Habitual Criminal Act (mandatory life imprisonment). Pled not guilty, obtained indictment, found guilty. CoA reversed b/c prosecutor conduct violated principles protecting Ds from vindictive exercise of prosecutorial discretion. Cert to S.Ct.

·         Ruling: Reversed, life imprisonment stands. As long as D is free to accept / reject prosecutor offer, this is fine. Mutuality of advantages of plea bargaining to Ds and prosecutors. If prosecutor has probable cause, he can charge whatever legal, so long as selection not deliberately based on e.g. race, religion. Desire by prosecutor to induce guilty plea is not an unjustifiable standard. Contrary ruling would invite subterfuge by prosecutors.

·         Dissent 1: Encourages prosecutors to bring greater charge initially and only then to bargain. More difficult bargain b/c bargaining against greater charge. Preferable to hold prosecution to the charge it was originally content to bring.

·         Dissent 2: Deference would be appropriate if initial charge was mandatory life; but here, prosecutor initially deemed it unreasonable to put D in jeopardy of life imprisonment. Implementation of strategy solely to deter exercise of constitutional right to trial not constitutionally permitted exercise of discretion.

Notes after Hayes

·         Lynch (on working as assistant DA): no official rules re: plea-bargaining; prosecutors had almost complete discretion; would ignore guidelines entirely or relabel crime as something else to make it fit into sentence guideline they wanted; often would decide sentence then find crime to produce correct sentence; snap decisions; presentence investigators grossly underutilized (contra judges).

·         Common in DA offices, but not pattern in U.S. Attys. office – require written pleas and review; but still review often cursory.

·         See Lynch 1040-1043 re: white-collar criminal proceedings, quasi-judicial supervision; administrative not adversarial; prosecutors best when quasi-judicial decisionmakers on fairness rather than partisan negotiators for state.

·         Argues for greater formality of procedure to enhance fairness of p-b process; institutional checks on prosecutors (see Europe).