How was Prosecutorial Discretion Established?
Prosecutorial discretion is when a prosecutor has the power to decide whether or not to charge a person for a crime, and which criminal charges to file.
Historically, government prosecutors initiated criminal prosecutions as well as private victims. The colonial public prosecutor retained the power of nolle prosequi, that is, the right to decline a prosecution or end a pending prosecution, even if a private party had brought the prosecution in the first place. The term nolle prosequi originated in England and was later adopted by the American criminal justice system.
Congress then passed the Judiciary Act of 1789, which created federal law enforcement structure, including the District Attorneys, charged with enforcement of federal law in every judicial district. The statute articulated these attorneys’ duty to prosecute “all delinquents” for federal crimes and offenses, even though federal prosecutors routinely exercised the power of nolle prosequi and declined to prosecute all crimes. The statute did not prohibit citizens from bringing private prosecutions, but the practice of private prosecutors was never established in the federal system.
The Judiciary Act of 1789 was passed against the backdrop of the common law prosecutorial powers and set forth no standards to govern the manner of enforcing the law, nor did it provide the discretionary powers. In 1861, Congress conferred ultimate responsibility for criminal prosecutions upon the politically appointed attorney general, again without modifying the scope of prosecutorial discretion. Under this Act, neither the Court nor private citizens could interfere with the Attorney General's decision. The public prosecutor's discretion is indirectly linked to executive power. The Supreme Court in Ponzi v. Fessenden, later interpreted this statute as giving the attorney general " exclusive direction" of the prosecution before indictment.
Under federal law, a public prosecutor has exclusive discretion to decide whether or not to prosecute any crime that is supported by probable cause. If a prosecutor decides not to pursue a case, the federal courts are reluctant to interfere.
The term "prosecutorial discretion" first appeared in American case law in a Supreme Court case, Poe v. Ullman, that ultimately held that prosecutorial discretion, like the separation of prosecutorial powers doctrine that supports it, is now entrenched in modern case law. According to modern case law, the separation of powers doctrine requires judges to permit broad prosecutorial discretion. The Supreme Court has endorsed the theory of prosecutorial discretion, remarking that "the decision of a prosecutor in the Executive Branch not to indict
. . . has long been regarded as the special prince of the Executive Branch.
Does Prosecutorial Discretion have a source in the Constitution?
In Heckler v. Chaney (1985), Justice Rehnquist prescribed the decision not to indict as “a decision which long has been regarded as special province of the Executive Branch, inasmuch as it is the Executive who is charged under the Constitution under Article II, section 3, to “take care” that the laws be faithfully executed.
The Department of Justice takes a similar position, that prosecutorial discretion is constitutionally derived from the Constitution’s directive that the laws be “faithfully executed.” However, the Constitutional separation of powers doctrine does not adequately account for expansive prosecutorial discretion.