Legislation Addressing Prosecutorial Discretion
Federal Legislation
THE PURPOSE OF PROSECUTION
"The principles of federal prosecution . . . are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to:
§ Initiating and declining prosecution;
§ Selecting charges;
§ Entering into plea agreements;
§ Opposing offers to plead nol contendere;
§ Entering into non-prosecution agreements in return for cooperation; and
§ Participating in sentencing.
. . . Under the federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See note 1. This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." See note 2.
"Since federal prosecutors have great latitude in making crucial decisions concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice, that all federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities." See note 3.
THE DECISION TO PROSECUTE
"If the attorney for the government concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction, he/she should consider whether to:
§ Request or conduct further investigation;
· Commence or recommend prosecution;
· Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
· Decline prosecution and commence or recommend pretrial diversion or other non-criminal disposition; or
· Decline prosecution without taking other action."
This "sets forth the courses of action available to the attorney for the government once he/she concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction. The probable cause standard is the same standard required for the issuance of an arrest warrant or a summons upon a complaint ... and for a magistrate's decision to hold a defendant to answer in the district court ... and is the minimal requirement for indictment by a grand jury....This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may instead be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provisions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions or other measures as well." See note 4.
STANDARDS OF THE PROSECUTOR AND PROSECUTORIAL DISCRETION
“The prosecutor should at all time be zealous in the need to protect the rights of individuals, but must place the rights of society in a paramount position in exercising prosecutorial discretion”. See note 5.
“The prosecutor in exercising charging discretion should require sufficient admissible evidence to support a conviction”. See note 6.
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Legislation in Nevada
STATUTES
The "District attorney may request assistance from Attorney General in criminal prosecutions; appointment of special prosecutor under certain circumstances; compensation.
1. In all criminal cases where, in the judgment of the district attorney, the personal presence of the Attorney General or the presence of a deputy attorney general or special investigator is required in cases mentioned in subsection 2, before making a request upon the Attorney General for such assistance the district attorney must first present his or her reasons for making the request to the board of county commissioners of his or her county and have the board adopt a resolution joining in the request to the Attorney General.
2. In all criminal cases where assistance is requested from the Attorney General’s Office, as described in subsection 1, in the presentation of criminal cases before a committing magistrate, grand jury, or district court, the board of county commissioners of the county making such request shall, upon the presentation to the board of a duly verified claim setting forth the expenses incurred, pay from the general funds of the county the actual and necessary traveling expenses of the Attorney General or his or her deputy attorney general or his or her special investigator from Carson City, Nevada, to the place where such proceedings are held and return therefrom, and also pay the amount of money actually expended by such person for board and lodging from the date such person leaves until the date he or she returns to Carson City.
3. This section must not be construed as directing or requiring the Attorney General to appear in any proceedings mentioned in subsection 2, but in acting upon any such request the Attorney General may exercise his or her discretion, and his or her judgment in such matters is final." See note 7.
RULES OF PROFESSIONAL CONDUCT
"Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) The information sought is not protected from disclosure by any applicable privilege;
(2) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and,
(3) There is no other feasible alternative to obtain the information;
(f) Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule." See note 8.
NEVADA CASE LAW
Thomas v. Eighth Judicial Dist. Court of Nev.
"Prosecutorial misconduct is when government attorneys knowingly or recklessly violate ethical or legal standards while prosecuting a criminal case in Nevada”. See note 9.
Salaiscooper v. Eighth Judicial Dist. Court
"Petitioner Virginia Anchond Salaiscooper contends that, in prosecuting her for solicitation of prostitution, Clark County District Attorney Stewart Bell is engaging in impermissible unconstitutional selective prosecution that violates her right to equal protection under the law. More specifically, Salaiscooper contends that the district attorney intended to discriminate against females by implementing a policy that prohibited his deputies from entering into plea negotiations with female defendants charged with solicitation of prostitution, thereby foreclosing any possibility that they could attend a diversion class in order to avoid solicitation convictions . . . Had the district attorney done as Salaiscooper alleges and, in exercising his prosecutorial discretion, intended to discriminate against women, we would agree with Salaiscooper. However, the unrefuted evidence in this matter demonstrates that the district attorney's prosecution policy differentiates between buyers of sex and sellers of sex, not between males and females. We cannot say that a prosecutor intends to discriminate against females by allowing all buyers of sex, regardless of gender, to attend a successful diversion program, which is designed solely for buyers of sex. We also cannot say that a prosecutor intends to discriminate against females by implementing a policy treating sellers of sex differently in order to deter acts of prostitution committed by those who work in the adult entertainment industry. Because we conclude that this is a case of prosecutorial discretion and not unconstitutional selective prosecution, we deny Salaiscooper's petition." See note 10.
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NOTES:
1. United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965).
2. U.S. Const. Art. II § 3; Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).
3. Justice Manual, United States Department of Justice; 9-27.110 – Principles of Federal Prosecution: PURPOSE.
4. Justice Manual, United States Department of Justice, 9-27-000 – Principles of Federal Prosecution: INITIATING AND DECLINING PROSECUTION—PROBABLE CAUSE REQUIREMENT.
5. NDAA National Prosecution Standard § 1.3, 2nd Ed. (1991).
6. ABA Prosecution Function Standard §3-3.9(a); NDAA National Prosecution Standard § 43.6(a), 2nd Ed. (1991).
7. Nevada Revised Statutes § 228.130
8. Nevada Rules of Professional Conduct, Rule 3.8; Added; effective May 1, 2006.
9. Thomas v. Eighth Judicial Dist. Court of Nev., 402 P.3d 619, 133 Nev. Adv. Rep. 63 (2017).
10. Salaiscooper v. Eighth Judicial Dist. Court, 117 Nev. 892, 34 P.3d 509, 2001 Nev. LEXIS 79, 117 Nev. Adv. Rep. 72.