Time to rethink absolute prosecutorial discretion?

In an October 2007 article for Slate, legal scholar Tim Wu described a game prosecutors in the Southern District of New York would play amongst themselves during their downtime.¹ The game was both simple and unnerving. One prosecutor would name a famous person—say, Mother Teresa—and the junior prosecutor would figure out which crime(s) he or she could indict the person on. Anyone familiar with the Federal Code, or even State criminal codes, should not have much trouble with this game. After a few rounds, it becomes clear how nearly impossible it is to live a completely crime-free life.

So why don’t most people have a criminal rap sheet 10-feet long? Even non-lawyers intuitively know the answer to that question: prosecutorial discretion. When it comes to the notorious crimes that have always been illegal—such as battery, rape, murder, theft, and so on—our freedom from criminal prosecution is largely in our own hands. People do not accidentally commit armed robberies. But what about the obscure offenses listed throughout our nation’s criminal codes that most people don’t even know exist? See, e.g., the Yo-Yo Waterball Sales Prohibition Act (815 ILCS 445/5-15). Of course, the criminal justice system, to some extent, must operate on the assumption that ignorance of the law is no excuse. But with the increasing criminalization of conduct that is not intuitively wrongful, perhaps it is time to revisit the due process implications of unfettered prosecutorial discretion.

The only thing preventing our prosecution for the crimes we commit—yes, you and I both commit crimes—is the prosecutor’s total discretion. And although prosecutorial discretion has always been a part of our criminal justice system, the criminalization renaissance we have seen over the past half century has elevated the prosecutor to a potentially dangerously high level of power. This gives rise to due process concerns that may not have been present in the days of yore.

Remember the eavesdropping law the Illinois Supreme Court struck down last year? That law made it a crime to record any part of a conversation unless all parties to the conversation consented. People v. Clark, 2014 IL 115776, ¶ 14. Thankfully, prosecutors in Illinois decided—in their discretion—not to prosecute the thousands of parents who certainly broke the law by recording their children’s school plays. No one was charged and convicted with felony eavesdropping for using their iPhone to record a political debate in a public park. But could they have been? Under the current law governing prosecutorial discretion, the answer is an unequivocal “yes.”

Perhaps the eavesdropping law might be a bad example. After all, it was found to be unconstitutionally overbroad. So take a look at another currently valid law. In Illinois, one commits “transmission of obscene messages” when he or she “sends messages or uses language or terms which are obscene, lewd or immoral with the intent to offend by means of or while using * * * equipment or wires of any person[.]” 720 ILCS 5/26.5-1(a). Welp, welcome to the Internet everyone. If every person who committed this crime was charged, the criminal docket of almost every county would be overflowing with juveniles and adults alike. So what should guide a prosecutor’s decision to bring charges under this statute? This is the type of decision in which political motivations and personal grudges can turn a prosecutor into a tyrant.

But even if conviction does not result from a charge, the mere power to charge gives rise to its own liberty concerns. Professor Glenn Reynolds made the following observation about prosecutorial discretion:

Once charged with a crime, defendants are in a tough position. First, they must bear the costs of a defense, assuming they are not indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain—pressure made worse by the modern tendency of prosecutors to overcharge with extensive “kitchen-sink” indictments: Prosecutors count on the fact that when a defendant faces a hundred felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive. Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be in play. Worse, prosecutors have no countervailing incentives not to overcharge. A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity. Glenn Harlan Reynolds Ham Sandwich Nation: Due Process When Everything Is a Crime, 113 Columbia L. Rev. Sidebar (2013), <http://www.columbialawreview.org/ham-sandwich-nation_Reynolds>.

The bench and bar should be willing to at least talk about the constitutional considerations underpinning our system of unfettered prosecutorial discretion. Certainly, a revived discussion would not hurt, even if no concrete changes follow. In the meantime, prosecutors should never lose sight of their sacred duty to do the right thing. This applies not only to prosecuting criminals, but also— perhaps even more so—deciding whether to prosecute in the first place.

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1. Tim Wu, “American Lawbreaking,” Slate (Oct. 14, 2007), <http://www.slate.com/articles/news_and_politics/jurisprudence/features/2007/american_lawbreaking/introduction.html>.