Criminal Procedure
I. Prosecutorial Discretion
A. What are the factors considered in prosecuting a crime?
1. Severity of the crime
2. Probability of conviction/ sufficiency of evidence
3. Factors re the Offender:
recidivism
motivation of the offender
past record – dangerous to society
4. Resource allocation of prosecutors – there are more severe crimes that should be prosecuted
5. Public Eye – Reflects poorly on office/police to prosecute bogus crimes
6. Alternative Sanctions/ diversion program
B. Lafave: 3 reasons we need prosec discretion
1. overcriminalization
2. enforcement resources are limited
3. need to individualize justice
C. Prosecutorial Discretion and Legislative Intent:
1. Separation of Powers – if the legislature did make it a criminal act to commit this offense (ex. Smokey the Bear Hype) – is it the role of the prosecutor’s office to determine which laws should be enforced and which should not? Isn’t this sort of an example of the executive interpreting the intentions of the legislature?
2. Cf. Legislatures are not very good about going through the books and cleaning up these laws which are out of date or ridiculous.
3. Considerations when P charges maximum penalty for minor offense b/c she “knows” that D is guilty of more serious unprovable crimes (when a defendant’s possible involvement in other crime for which there is insufficient evidence – may persuade a prosecutor to charge the highest sentence allowable):
a. Within Leg. Provisions: Still operating within the terms of legislation provided (max. penalty) – therefore you cannot go to an unreasonable extreme. On the other hand, this may be an offense which is never prosecuted to its fullest extent, never to the limits allowed be legislation.
b. Judge Ultimate Sentencer: The prosecution can only push for a particular sentence – there is still the backstop of the judge who can conform to norms and only to the routine sanction. The judge may not consider the D’s possible criminal involvement in the sentencing determination.
4. ABA Standards for Prosecution: p. 854:
3-2.5(a) – each office should have a handbook of policies which guide them in their discretion.
3-25(b) – the handbook should be open to the public, except for subject matters which are deemed “confidential.”
D. Challenging the Prosecutor’s Discretion – Judicial Deference to Prosecutorial Discretion:
1. Inmates of Attica p. 862 – the inmates sought a writ of mandamus to require federal official to investigate and prosecute guards who had violated federal statutes in treatment of inmates in the prison. Mandamus can only compel someone to do a mandatory (not discretionary) act. Plaintiff relies on a statute which “authorizes and requires” the U.S. attorneys to institute prosecutions against all persons violating the act The court finds that the “requires” language does not preclude prosec. discretion and will not issue a mandamus.
Rationale:
a. Separation of powers – judges should not be made to be “superprosecutors.” Judges are not equi
her statute with all the same elements mandated only a two year lid. Same conduct, diff penalty. Again, the court upheld the prosecutor’s discretion to charge under the harsher statute.
II. Application of the Bill of Rights to the States under the 14th Amend:
A. “Total Incorporation” of Bill of Rights: this approach was never adopted by a majority of the Court. J. Black was its biggest supporter.
B. “Fundamental Fairness” Approach: This was the approach used until the 1960’s. It overlaps with “Selective Incorporation” approach below. The Court would apply the rt. to the states if it found that the rt. was fundamental to a fair and just criminal trial. Value of rights under facts of case. Powell (indigent, capitol case, ppl of color à get atty). Betts.
“Selective Incorporation” of the Bill of Rights: A SC majority has never held that the 14th Amend. “totally” incorporates all provisions of the Bill of Rights. Instead the SC has selectively incorporated many of the individual rights of the first eight amendments of the Const. to the states through the 14th Amend. Due Process Clause. Today, nearly all the rights of the fed const. have been constitutionally required in state cases as well. Focus on value of
