George and Margaret Barrock Lecture on Criminal Law: Darryl K. Brown

November 4th, 2019
THE DILEMMA OF DISCRETION: WHICH OFFENSES SHOULD PROSECUTORS CHARGE?
Darryl K. Brown
Prosecutors have broad discretion about whether and how to prosecute. For decades, the U.S. Department of Justice has restricted its prosecutors’ discretion and required that they always charge “the most serious, readily provable offense.” By contrast, some state prosecutors have recently adopted explicit policies of charging offenders much more leniently than they might, and of not prosecuting certain crimes at all. Both approaches present problems. For example, some statutes are explicitly designed to be enforced in some cases but not others; mandatory charging policies contradict the original legislative intent for such statutes. But never enforcing certain offenses opens prosecutors to the criticism that they defy legislative policy in another way, by “nullifying” statutes and failing to ensure the laws are faithfully executed. This lecture will explore these and other difficulties and dilemmas of prosecutorial discretion, and it will evaluate some approaches that prosecutors’ offices employ to avoid the problems of both extremes.