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U.S. Prosecutors Have Too Much Power

The BriefGet Up To Speed

Today, a national debate rages about the functioning of our criminal justice system. Is it fair? Does it serve the ends of justice and public safety? Does it apply equally to all? Prosecutors, endowed with both autonomy and immunity, hold immense power within this system. They control secret grand jury proceedings, who will be prosecuted, and the specifics of charges. Moreover, those charges are often based on complex laws -- and enforced by long mandatory minimum prison sentences -- creating strong incentives for defendants to capitulate to lesser charges, perhaps even to crimes they did not commit. Indeed, more than 90% of both federal and state court cases never go trial, but instead are resolved through plea bargaining. Autonomy and secrecy, complex criminal code and mandatory minimums -- in combination, these factors have given prosecutors enormous leverage, and the opportunity to wield it relentlessly and selectively. The results, critics charge, are the undermining of the right to jury trial, mass incarceration, public skepticism regarding equal justice, and immense pressure on every defendant.

Yet there can be no justice without empowered prosecutors. And is abuse really endemic? Isn't the national crime rate down over the long-term, showing that these powers work? And would changes reducing the leverage of prosecutors in the criminal justice system weaken their critical responsibility to prosecute crimes of great complexity, keep communities and the nation safe, and secure justice? Do prosecutors have too much power?


American prosecutors have too much power. Hand some of it to judges.

Tuesday, March 1, 2016
Economist Editorial Board

Plea Bargaining has come to dominate the administration of justice in America.

Tuesday, March 1, 2016
Timothy Lynch

A study involving dozens of college students and taking place over several months, revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit.

Tuesday, March 1, 2016
Lucian E. Dervan and Vanessa A. Edkins

While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same.

Tuesday, July 14, 2015
Eugene Volokh

Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

Monday, March 18, 2013
Radley Balko

This essay’s findings, based on an investigation into the professional conduct rules and attorney discipline procedures of all fifty states, suggest that disciplinary systems as they are currently constituted do a poor job of policing prosecutors.

Tuesday, October 25, 2011
David Keenan

Discovering and proving sophisticated crimes requires extensive powers — chiefly far-reaching statutes defining crimes broadly and ample leeway for decisions on the ground about where to direct resources in the form of grand juries, charges and agreements for testimony.

Sunday, August 19, 2012
Samuel Buell

Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges. (Scroll down to 2nd letter)

Thursday, December 18, 2014
Michael M. Baylson

The report by the innocence Project claiming 91 Texas cases of prosecutorial misconduct contains serious flaws that result in a vast overstatement of the problem. The overwhelming majority of exonerations have resulted from misidentification or reliance on faulty science, not prosecutorial misconduct, as documented in previous research by the national Innocence Project.

Tuesday, March 1, 2016
Texas District and County Attorneys Association

When scholars discuss prosecutorial discretion, they often treat it as anregrettable concession to reality. American criminal court dockets are chronically congested, so prosecutors must use discretion to plea bargain away most of their cases.

Tuesday, March 1, 2016
Stephanos Bibas
Monday, March 1, 1993
William Pizzi

This paper empirically documents one way in which prosecutorial discretion may be used to dampen the effects of mandatory minimum sentencing laws. Specifically, prosecutors can use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants by prosecuting defendants who were initially arrested for the crime targeted by the sentencing law for lesser crimes not covered by the law.

Saturday, October 1, 2005
David Bjerk
Criminal Process and Prosecutorial Standards

How the criminal process works in the federal system.

Wednesday, December 31, 1969
Offices of the United States Attorneys

These principles of Federal prosecution provide to Federal prosecutors a statement of sound prosecutorial policies and practices for particularly important areas of their work.

Wednesday, December 31, 1969
Offices of the United States Attorneys

These standards are intended to be an aspirational guide to professional conduct in the performance of the prosecutorial function.

Wednesday, December 31, 1969
Plea Bargains

Plea bargains are agreements between defendants and prosecutors where defendants agree to plead guilty to some or all of the charges against them in exchange for concessions from the prosecutors.

Wednesday, December 31, 1969
Legal Information Institute

While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process

Monday, January 24, 2011
Lindsey Devers

For the first time, the U.S. Supreme Court has ruled that defendants have a constitutional right to effective assistance of counsel in plea bargains. In a 5-4 decision, the court went further, declaring that when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea offer.

Wednesday, March 21, 2012
Nina Totenberg
Mandatory Minimums

Is justice best served by having legislatures assign fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case within a defined range?

Monday, February 10, 2014
Evan Bernick and Paul Larkin

Some prosecutors fear the consequences of weakening mandatory minimum sentences for drug convictions.

Saturday, October 31, 2015
Ann Marimow

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Sunday, September 25, 2011
By Richard A. Oppel

An overview of federal mandatory minimum statutes.

Monday, September 9, 2013
Charles Doyle
Sentencing Guidelines

Current sentencing guidelines and overview of the Commission.

Sunday, November 1, 2015
United States Sentencing Commission

This report describes each state Sentencing Commission, identifies key attributes of the guidelines, and provides a useful means to compare alternative guideline systems along a continuum from more voluntary to more mandatory.

Tuesday, March 1, 2016
Neal Kauder and Brian Ostrom
Additional Reports

An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.

Thursday, March 13, 2014
Project on Government Oversight
Crime Rates

This report examines one of the nation’s least understood recent phenomena – the dramatic decline in crime nationwide over the past two decades – and analyzes various theories for why it occurred, by reviewing more than 40 years of data from all 50 states and the 50 largest cities.

Thursday, February 12, 2015
Oliver Roeder