In early December, a Nebraska prosecuting attorney charged a 16-year-old girl with misdemeanor motor vehicle homicide. Her car had collided with a pickup truck, and one of her passengers — a teenager and a friend — was killed.
The young driver allegedly ran a stop sign and violated her provisional driver’s license.
The prosecutor filed the homicide charge despite an online petition, signed by almost 2,000 people, asking him to forgo the case. Even the victim’s mother expressed doubts about criminal charges.
But the prosecutor, Lee Polikov, said he had to proceed.
“We don’t represent the victim,” he said. “We represent the state.”
Every day, in courthouses across the nation, government prosecutors make choices like Polikov’s. Increasingly, that power faces growing scrutiny.
Prosecutors decide who will face charges for alleged criminal misconduct and who won’t. They decide what the charges will be. They often decide what punishment to pursue, or whether accused criminals should be released from custody. They plea bargain. They dismiss cases.
Like Polikov, each promises to pursue the public’s interest — and justice.
Yet their power — their prosecutorial discretion — is enormous and largely unchecked beyond the indirect influence of the ballot box.
Prosecutors make charging decisions in secret, without significant outside review and without much public input. Crime victims are rarely part of the charging process and don’t have a right to appeal if a prosecutor declines to pursue a case.
“The prosecutor has more control over life, liberty and reputation than any other person in America,” former U.S. attorney general Robert Jackson said more than 70 years ago.
A series of recent high-profile cases underscore the singular clout of a prosecutor. From a prosecutor’s decision not to charge a Florida State quarterback with sexual assault to a similar decision in a Maryville, Mo., case to claims that prosecutors are too eager to pursue charges — for example, the Nebraska accident — some critics contend prosecutors’ largely unfettered charging authority may be more harmful than helpful.
“Prosecutorial discretion poses an increasing threat to justice,” wrote University of Tennessee law professor Glenn Harlan Reynolds. “It is time to look at structural changes in the criminal justice system that will more successfully deter prosecutorial abuse.”
Most prosecutors fiercely resist any challenges to their powers. They are trained in ethics and responsibility, they say, protecting the public and criminal suspects.
“It’s an enormous power,” said Jackson County Prosecutor Jean Peters Baker. “And it’s an enormous responsibility that goes with that power. … We are bound by an oath and rules of professional conduct.”
Prosecutors insist they take their authority seriously, realizing the damning effects of merely charging someone with a crime or the possible injustice of forgoing a case.
“There’s no question the American prosecutor enjoys an independence and wealth of discretionary power unmatched in most other countries,” said Eric Zahnd, who is in his third term as Platte County prosecuting attorney. “There are good reasons for that.”
But Zahnd and other prosecutors admit the process can often at least appear unequal and unfair:
• Prosecutorial discretion means an alleged offense — say, marijuana possession — might bring criminal charges in one county but not in another.
• A prosecutor in one state might charge a felony, while another sees the identical case as a misdemeanor, or as no case at all. Standards for reaching different decisions in such cases are solely up to the prosecutor.
• Standards of evidence may vary among prosecutors. A fatal lack of evidence in one courthouse may be enough for charges in a different locale.
• Some prosecutors may lack the resources to pursue all possible cases or may make a determination that some types of cases are more important than others, allowing some criminals to escape punishment.
“You’ve got to draw a line someplace,” said former U.S. attorney Jean Paul Bradshaw. “Prosecutors ultimately have to make those decisions.”
• The charging process itself, particularly in the federal system, can essentially allow prosecutors to set punishments. After a conviction, judges have little leeway to depart from sentences based on the charges that are filed.
“The area where we can run into big trouble is the intersection of prosecutorial power and the charging of crimes that carry harsh mandatory sentences,” said Nancy Hoppock, a former prosecutor and executive director of the Center on the Administration of Criminal Law at New York University.
In his essay, law professor Harlan suggests removing prosecutors’ immunity, making them more accountable for their decisions. Or: “Perhaps the prosecution could be required to pay a defendant’s legal fees if he or she is not convicted,” he writes, as a check on charging marginal cases.
Indeed, comprehensive alternatives to prosecutorial discretion can be difficult to find. Endless reviews of evidence and criminal statutes might leave suspects without a resolution of their cases for months or years, some lawyers say, unfairly burdening them without actual charges being filed.
And some defense lawyers say prosecutorial discretion allows suspects to challenge evidence and procedures before a trial, saving their clients money and the embarrassment of formal charges when the state is likely to lose the case.
“There are a lot of shades of gray,” said F. Coulter deVries, a local defense attorney. “And there are a lot of uncertainties when you get in front of a judge and jury.”
Intervention before charges are filed can bring its own problems. Victims, for example, aren’t represented, and rules of evidence can be different behind closed doors.
Earlier this year — responding to a court decision — British prosecutors adopted a formal system allowing crime victims to ask for another review of their unfiled cases. It’s called the Victims’ Right to Review.
“When you are advised that a decision not to bring charges or a decision to stop the case has been made, you will be notified, in clear terms, of the right to request a review of that decision,” the prosecutors’ website explains. “You will be provided with information as to how to exercise the right.”
Local prosecutors said they would oppose such a system or any other measure designed to significantly weaken their right to pick cases they want to pursue.
There are other alternatives to the abuse of prosecutorial discretion. In Kansas, for example, citizens can petition for a grand jury to consider charges independent of the prosecutor’s office.
“This is the people’s tool to bring to sunlight an issue that is otherwise hidden from justice,” Kansas activist Phillip Cosby said in February when testifying before a a Kansas legislative committee.
But the Kansas grand jury approach brings its own problems. It, too, is secret and can be abused, critics say, unfairly costing potential defendants thousands of dollars in legal costs.
Ultimately, local prosecutors say, the check on their power rests with voters. Too many charges, or not enough, and voters can pick a replacement.
That isn’t possible with federal prosecutors, who aren’t elected. The presidents who appoint attorney generals are. But those assistant U.S. attorneys general — like their local counterparts — say the public should have faith in what they do because they take their authority so seriously.
“I always laid awake at night worrying about cases that I had to make a decision on,” said former U.S. attorney Todd Graves, who also prosecuted on the state level but now represents private clients.
“Many times the charge is more important than the outcome. You charge someone with being a child molester and it doesn’t really matter if they win or lose.”