Prosecutorial Discretion Generally
The judicial branch has traditionally accorded federal prosecutors
a) “broad” latitude
i) in making a range of
A) investigatory and
(a) including when, whom, and whether
(i) to prosecute particular violations of federal law.39
a) of “prosecutorial discretion”
1) has a long historical pedigree
a) —the early roots
b) of which can be traced at least to a Sixteenth Century English common law procedural mechanism
i) known as the nolle prosequi.40
a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
the entry of nolle prosequi in a court record.
Nolle prosequi (/ˌnɒli ˈprɒsəkwaɪ/; Classical Latin: [ˈnolːe ˈproːsekwiː])
is legal term of art and a Latin legal phrase meaning "be unwilling to pursue", a phrase amounting to "do not prosecute".
It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. I
t contrasts with an involuntary dismissal.
Application in law
Nolle prosequi as a declaration is most often used in criminal cases, but in jurisdictions making use of nolle prosequi in civil lawsuits, is used by a plaintiff to voluntarily drop its claims. In civil cases, a motion for voluntary dismissal may be made by a plaintiff instead of a declaration of nolle prosequi, depending upon the custom and rules of a given jurisdiction
In the early English legal system,
criminal prosecutions were generally initiated
a) by private individuals
i) rather than public prosecutors.
The nolle prosequi, however, allowed the government,
a) generally at the direction of the Crown,
b) to intervene in and
i) a privately initiated criminal action
A) it viewed as
I) “frivolous or
II) in contravention of royal interests.”41
The discretionary device
a) was later adopted into American common law and
b) has been used
i) by prosecutors
ii) to terminate criminal prosecutions
A) that are determined to be unwarranted or
B) which the prosecuting authority chooses not to pursue.42
Notwithstanding this historical background,
the modern doctrine
a) of prosecutorial discretion
1) derives more from our constitutional structure
a) than English common law.
the exact justification
a) for the doctrine
1) does not appear to have been explicitly established.
courts have characterized prosecutorial discretion
a) as a function of some mixture of
i) the separation of powers,
ii) the Take Care Clause,43 or
iii) the duties of a prosecutor
A) as an appointee
I) of the President.44
a) federal and
1) have ruled that
a) the exercise of prosecutorial discretion is an executive function
A) necessary to the proper administration of justice.
Given these precedents,
prosecutorial discretion may be appropriately characterized
a) as a constitutionally based doctrine.
39 See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985) (“In our criminal justice system, the Government retains
‘broad discretion’ as to whom to prosecute.”) (citing United States v. Goodwin, 457 U.S. 368, 380 (1982)); United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…”) (citing the Confiscation Cases, 74 U.S. 454 (1869)).
40 See, e.g., Rebecca Krauss, The Theory of Prosecutorial Discretion in Federal Law: Origins and Development, 6
SETON HALL CIR. REV. 1, 19-26 (2009) (describing the English use of the nolle prosequi and its “absorb[tion]” by
41 Id. at 20.
42 See, e.g., Confiscation Cases, 74 U.S. 454 (1869); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (“Most recently, the issue of the United States Attorney’s ‘discretionary control of criminal prosecutions has arisen in connection with the filing of a nolle prosequi, and the Courts have regularly refused to interfere with these voluntary dismissals of prosecution.’”) (citing Louis B. Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13
LAW & CONTEMP. PROB. 64, 83 (1948)). Today, judicial approval is generally required before a prosecutor may dismiss an ongoing prosecution. See FED. R. CRIM. P. 48(a) (“The government may, with leave of court, dismiss an indictment,
information, or complaint.”).
43 U.S. Const. Art. II, §3 (“[H]e shall take Care that the Laws be faithfully executed.... ”).
44 See, e.g., Armstrong, 517 U.S. at 464 (“They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”); Confiscation Cases, 74 U.S. at 458 (“Appointed, as the Attorney General is, in pursuance of an act of Congress, to prosecute and conduct such suits, argument would seem to be unnecessary to prove his authority to dispose of these cases in the manner proposed.... ”); Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (“The Attorney General is the head of the Department of Justice. He is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offences
be faithfully executed.”); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“The Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be
faithfully executed. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he
exercises discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers
of the attorneys of the United States in their control over criminal prosecutions.”) (internal citations omitted)).
Regardless of its precise textual source,
courts generally will neither
b) nor question
i) discretionary prosecutorial decisions,
c) nor “coerce” the executive branch
i) to initiate a particular prosecution.
In acknowledging the discretion
a) possessed by enforcement officials,
1) courts have recognized that
a) the “decision
i) to prosecute
is particularly ill-suited
i) to judicial review,”
b) as it involves the consideration of factors—
i) such as
A) the strength of evidence,
B) deterrence value, and
C) existing enforcement priorities—
ii) “not readily susceptible to the kind of analysis
I) the courts are competent to undertake.”45
the executive branch has asserted that
a) “because the essential core
i) of the President’s constitutional responsibility
is the duty
i) to enforce the laws,
b) the Executive Branch has exclusive authority
i) to initiate and
I) to enforce the laws
(a) adopted by Congress.”46
An agency decision
a) to initiate an enforcement action
i) in the administrative context
a) to some extent
b) the characteristics
i) of the decision
A) of a prosecutor
I) in the executive branch”
B) to initiate a prosecution
I) in the criminal context.47
just as courts are hesitant to question a prosecutor’s decisions
a) with respect to whether to bring a criminal prosecution,
1) so too are courts
a) cautious in reviewing an agency’s decision
i) not to bring an enforcement action.
In the seminal case
a) of Heckler v. Cheney,
the Supreme Court held that
a) “an agency’s decision
A) to prosecute or
I) whether through civil or criminal process,
is a decision
i) generally committed to an agency’s absolute discretion.”48
The Court noted that
a) agency enforcement decisions,
i) like prosecution decisions,
involve a “complicated balancing”
i) of agency
A) interests and
ii) —a balancing that
A) the agency is “better equipped”
I) to evaluate
II) than the courts.49
The Heckler opinion proceeded to establish the standard
a) for the reviewability
i) of agency non-enforcement decisions,
b) holding that
i) an “agency’s decision
A) not to take enforcement action
should be presumed immune
A) from judicial review.”50
the Court indicated that,
a) in certain cases,
b) that presumption may be overcome
c) “where the substantive statute has provided guidelines
i) for the agency to follow
A) in exercising its enforcement powers,” 51
1) as is discussed below.
45 Wayte, 470 U.S. at 607. However, the U.S. Court of Appeals for the District of Columbia Circuit has observed that “the decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.” Med. Comm. for Human Rights v. SEC, 432 F.2d
659, 673 (D.C. Cir. 1970).
46 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 OP. OFF. LEGAL COUNSEL 101, 114 (1984) (emphasis added). This traditional conception may, however, have been qualified in some respects following the Supreme Court’s decision in Morrison v. Olson, in which the Court upheld a congressional delegation of prosecutorial power to an “independent counsel” under the Ethics in Government Act. In sustaining the validity of the statute’s appointment and removal conditions, the Court suggested that although
the independent counsel’s prosecutorial powers—including the “no small amount of discretion and judgment [exercised by the counsel] in deciding how to carry out his or her duties under the Act”—were executive in that they had “typically” been performed by executive branch officials, the court did not consider such an exercise of prosecutorial
power to be “so central to the functioning of the Executive Branch” as to require Presidential control over the independent counsel. 487 U.S. 654 (1988). While the ultimate reach of Morrison may be narrow in that the independent counsel was granted only limited jurisdiction and was still subject to the supervision of the Attorney General, it does appear that Congress may vest certain prosecutorial powers, including the exercise of prosecutorial discretion, in an
executive branch official who is independent of traditional presidential controls. But see Nixon, 418 U.S. at 693 (“[T]he
Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.... ”).
47 Heckler, 470 U.S. at 832. The Court also expressed concern that judicial review of agencies’ exercise of
prosecutorial discretion could impose “systemic costs” by delaying criminal proceedings, chilling law enforcement, and undermining prosecutorial effectiveness. Id. at 833.
48 Id. at 831. Accordingly, such decisions are generally precluded from judicial review under the Administrative Procedure Act (APA). 5 U.S.C. §701 (establishing an exception to the APA’s presumption of reviewability where “agency action is committed to agency discretion by law”).
49 Heckler, 470 U.S. at 831.