Thu. Nov 21st, 2024

Information On Prosecutorial Discretion

Definition Of Prosecutorial Discretion:
A prosecuting attorney’s option to make choices with regard to charges, plea bargaining, sentence recommendation, etc.

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.

Defenders and Critics Of Prosecutorial Discretion

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.

The Federal courts have consistently upheld a prosecutor’s powers. “The discretion allowed prosecutors,” the Supreme Court said last year in a trademark infringement case, Young v. United States, “is so broad that decisions not to prosecute are ordinarily unreviewable.” Only in cases of flagrant abuse, including criminal activity by a prosecutor, may a court overrule a prosecutor’s decision, the Court has said.

Recent Ruling by High Court Regarding Prosecutorial Discretion

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.

Prosecutorial Discretion on Cases

“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.”

 

 


National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF


 

 

 

cited http://caught.net/caught/prosecuteabuse2.htm

 

 

 

 


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We also have the The Brandenburg v. Ohio (1969)1st Amendment

CURRENT TEST = We also have the TheBrandenburg testfor incitement to violence 1st Amendment

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We also have the Watts v. United StatesTrue Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment


Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment


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Anti-SLAPP Law in California

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We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

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We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
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Vermont’s Top Court Weighs: Are KKK Fliers1st Amendment Protected Speech

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Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment


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Information On Prosecutorial Discretion

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Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

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Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

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Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

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Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

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When is a Joinder in a Family Law Case Appropriate?Reason for Joinder

Joinder In Family Law CasesCRC Rule 5.24

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Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M


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Due Process vs Substantive Due Process learn more HERE

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Mathews v. EldridgeDue Process – 5th & 14th Amendment Mathews Test3 Part TestAmdt5.4.5.4.2 Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

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Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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Text Messages Sent on Private Government Employees Lines
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Prosecutor’s Obligation to Disclose Exculpatory Evidence

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ABA – Functions and Duties of the ProsecutorProsecution Conduct

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Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in LimineWhat is a Motion in Limine?


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Penal Code 851.8 PCCertificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act851.87 – 851.92  & 1000.4 – 11105CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in CaliforniaPenal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

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How to Reduce a Felony to a MisdemeanorPenal Code 17b PC Motion


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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 


Family Treatment Court Best Practice Standards

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Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.


 

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