inspired in part by our class discussions of prosecutorial discretion in capital cases, I have done a serius of recent posts at my main blog that focus on prosecutorial sentencing discretion. All the posts linked below are worth checking out (along with the comments), and the first linked post is especially on-point in light of our conversations during Friday's class:
Sentencing Class @ OSU Moritz College of Law
A new home for an old class blog
recent posts
- Anyone have any distinct views on who Joe Biden should pick as US Attorney General?
- What data in the federal system would indicate the Biden Administration is drawing down the federal drug war?
- A final (too brief) foray into what metrics and data matter for assessing a sentencing system
- Reactions to our look behind the robes with federal sentencing judges?
- Are there any “offender characteristics” that you think must be considered at sentencing? If so, how?
Sentencing Class @ OSU Moritz College of Law 
3 responses to “Some notable posts on prosecutorial sentencing discretion”
I guess what I agree with from these pieces is that while the legislature may set mandatory sentences or other sentencing guidelines, it is appropriate for the prosecutor to use discretion because “A district attorney has a much clearer picture of a community’s concerns.” Legislatures may have the bigger picture for the state or country, but each county or federal district has a different population. I agree that it is important and appropriate for prosecutors to use their discretion (in charging decisions) to further the viewpoint of their constituents.
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I very much believe that there is far too much discretion in prosecutor’s offices around the country, both in the death penalty and other contexts. Of most importance in this area is the potential for unlawful discrimination. It is no secret that minorities, particularly African-Americans are subject to the harshest side of the criminal justice system, from arrest to incarceration and/or execution. I think one way to possibly curtail some of this discrimination is to start at the prosecutor’s office Personally, I’d like to start at the police force, but the elective official component of the prosecutor’s office makes it more viable. Of course I don’t know how exactly one can cut down on prosecutorial discretion, but I think a place to start is to remove the veil of secrecy from the office. Prosecutor’s offices are funded with public money, and the public has the right to know who, how, when, and on what grounds the charging decisions are made.
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To borrow from one of the continuing themes of our class discussions thus far, prosecutor’s discretion seems to be an area that is incredibly easy to unpack, but very difficult to re-pack. It is easy to see, from examples such as the links to this thread, the incredible discretion that the criminal justice system gives prosecutors. However, any potential change to the system has the potential of bringing about a variety of problems, because it is hard to get around the reality that prosecutors have (and perhaps need) discretion. While many might complain about the negative aspects of prosecutorial discretion (and I am not questioning their existence), what would a system with more limited discretion look like. In my Criminal Procedure class last semester we discussed a German system requiring mandatory charging. Another possibility would be some sort of lottery charge system (something like Prof. Berman’s death penalty example). Nevertheless, these systems are wrought with their own problems, including cost and practicality (for mandatory charging), and at the very least a strong discomfort (I am not sure how better to describe it at the moment) with a lottery system. I guess what I am trying to say is there are various reasons why little is done to curtail prosecutorial discretion (by the judiciary or others) in a formal way (there are no doubt non-systematic checks on prosecutor’s discretion including funding and public pressure).
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