The Prudent Prosecutor

Prosecutors need good judgment (not just caution or pragmatism) because a large part of their job is discretionary. Indeed, in recent years, the discretionary part of prosecution has expanded. The concepts of good judgment and discretion, however, remain ambiguous. Accordingly, in this paper I focus on the discretionary component of prosecutorial practice and ethics. Part I identifies the centrality of discretion to prosecution. Despite differences of opinion about the merits of discretion, prosecutorial discretion has expanded in recent years. After explaining why discretion is needed in criminal prosecution in Part IA, I identify in Part IB when it applies: in investigation, charging, plea bargaining and sentencing. I report in Part IC that prosecutorial discretion may be unfettered. Appropriate judicial, legislative or administrative review may not occur, leaving prosecutorial discretion unreviewed and unreviewable. Because of the range of prosecutorial discretion and its unreviewable quality as described in Part I, numerous proposals for the reform of prosecutorial discretion have been advanced. Part II examines these reforms, which include calls for new, more specific standards; better enforcement of those standards through supervision, oversight and training; and improved judgment by individual prosecutors. These latter suggestions include recommendations for better moral as well as legal judgment by prosecutors. The proposals and the uncertainty about discretion raise the question: Does one need good moral judgment in order to be a good prosecutor? In Part III, I explore what insights legal ethics offers on that question. Parts IIIA and IIIB distinguish substantive moral and substantive legal judgment. I argue that - like all human persons - individual prosecutors must make their own judgments about the morality of their jobs and the obligations they impose. In these circumstances, prosecutors appropriately rely on substantive theories of morality as they decide whether to be prosecutors or whether to enforce laws and policies that they conclude are unjust. Such substantive moral judgment, however, is not the core of prosecutorial discretion. In Part IIIC I argue that prosecutorial discretion requires public moral judgment, a judgment rooted in prosecutorial practice and experience. Prosecutorial discretion is not the same as moral discretion; prosecutors should not become moral entrepreneurs who make discretionary decisions according to their own substantive theories of justice. Their legal role does not permit unfettered moral discretion. I conclude that prosecutorial discretion requires attention to office policies and procedures. Prosecutorial offices should develop specific policies of discretion and mandate training, consultation, supervision and review of discretionary choices. Policies alone cannot promote good judgment, however. That is developed through training by more experienced prosecutors and through consultation with peers and supervisors. Moreover, meaningful control of discretion is impossible without at least some form of internal administrative review. Therefore, each prosecutorial office needs regular review of discretionary decisions.