Capping Prosecutorial Discretion – Term Paper

Prosecutorial discretion has been a matter of concern, especially after the enactment of minimum sentencing law in the recent past. These enactments have left the majority of judicial officers with limited discretion, but on the other hand would leave the prosecutor’s chamber with quite some leeway in the administration of justice. Prosecutors have often enjoyed a lot of discretionary power under the United States justice system, with the ability to reduce the degree of charges, choose what evidence to incorporate among other actions that would be considered in the “furtherance of justice”. This paper investigates the effect of minimum sentencing laws on the powers of the prosecutor in each case. 

Mandatory and Presumptive Sentencing

Mandatory sentencing laws were largely enacted in the 1970s in the spirit of improving the incarceration of culprits that engaged in certain illegal activities, such as drug trafficking. A series of laws including the Rockefeller Drug laws and the Michigan Gun Laws are examples of laws that imposed heavy punitive measures to individuals who were engaging in illegal activity prescribed by the respective laws. Nonetheless, this was not the effect that was experienced when the application of the laws in courts was reviewed. Research shows that the application of these laws was neutralized by judicial agents through charge reduction or outright acquittals. While the spirit of the law was to reduce the incidence of vices related to the legislation, judicial agents disregarded these laws by circumventing them. The Michigan Gun Laws, for example, were subject to this circumventing. Here, only 59% of charged cases were convicted under the Act. Moreover, 25% of the convictions did not carry mandatory sentences despite qualifying to carry them. Further research pointed out that prosecutors will circumvent up to 35% of all cases involving mandatory minimums through diverse methods, including charge reduction. 

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Another aspect to consider is the three-strike laws, where most states have not fully implemented conviction under this system. Prosecutors seem to disregard these laws and fail to count the strikes in charges. Additionally, they may choose not to produce previous convictions as part of their discretionary power. In California, this practice could be defended as being in the furtherance of justice. Florida, as an example, could be considered. Only 20% of eligible males and 6% of eligible females are charged as habitual offenders in pursuit of the three-strike law. In California, where the law has been applied with a level of seriousness, the three-strike law is often interpreted differently. Habitual offenders on the third and second strike are treated as new offenders. Moreover, the prosecutor often engages their discretion to reduce the charges for the second and third strikes, and thereby get away with a circumvention of the three-strike law. As such, compelling evidence is produced to show that the prosecutor will use their discretion to circumvent gun and drug laws. This could be done either through the engagement of discretionary powers of dismissing charges, reducing them or failing to file them altogether. 

Reacting to this kind of discretionary power on the part of the prosecutor, the administration of justice indeed should not be in the hand of an individual. Individual interests must be separated from the administration of justice in as far as parties to a criminal case are concerned. The discretion of the prosecutor could hinder the proper administration of justice. Legislation put in place caps the discretion of the judge to ensure that there is a more uniform application of justice. Nonetheless, this should not create an opportunity to increase the discretionary power of another judicial officer to achieve the adverse effect that the law was trying to counter. An idealist argument would thus be propounded to state that the spirit of the laws was to impose a relatively equal playing ground for all offenders in the administration of justice, rather than to transfer discretion from one judicial officer to another (Ma, 2002). 

Nonetheless, an idealist argument may not hold water. It is necessary that legal reforms take place to cap the discretion of prosecutors to facilitate the administration of justice. Notably, fewer convictions are being made as prosecutors decide what to include and what not to include. This discretion nullifies the administration of justice as the prosecutor is free to admit whichever evidence deemed fit and reduce charges based on their agreed evidence. Additionally, three-strike rules are not properly administered because of the prosecutor’s discretion in either including previous charges and convictions or reducing charges. Moreover, research shows that racial profiling provides the basis upon which some of these decisions are made (Smith & Levinson, 2011). As a result, the provision of equal treatment ceases within a system like this. 

The enactment of mandatory sentencing laws opened up a new era of linear sentencing for offenders engaging in various illegal activities. Nonetheless, this left a loophole with regards to prosecutorial discretion. Of necessity, prosecutor guidelines should be developed to avoid a situation where this discretion is used subject to personal biases. This could nullify the effect of any linear sentencing laws, as conviction will be based on the personal views of the prosecutor.  


Ma, Y. (2002). Prosecutorial discretion and plea bargaining in the United States, France, Germany, and Italy: A comparative perspective. International Criminal Justice Review, 12(1), 22-52.

Smith, R. J., & Levinson, J. D. (2011). Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion. The Seattle University Law Review, 35, 795.