The court comes to school: lessons on prosecutorial discretion

Last Wednesday, my criminal law students had to go only a few feet to hear a session of oral arguments before the Utah Supreme Court. Both the Utah Supreme Court and the Tenth Circuit Court of Appeals hold arguments at the S.J. Quinney College of Law every so often. It’s always a great learning opportunity, and Wednesday’s arguments were no exception. A felony drug possession case raised important questions about efforts to limit prosecutorial discretion in charging decisions.

A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” Wednesday’s arguments focused on how courts should decide whether there is uncertainty as to the applicable punishment: should courts look only at the statutory language to decide whether two statutes impose different punishments on identical conduct, or should the courts consider how the statutes are applied given the facts and evidence of the particular case? On paper, Utah’s felony drug possession and misdemeanor paraphernalia statutes look different—there are ways to possess drugs that don’t violate the paraphernalia statute, and ways to possess paraphernalia that don’t violate the drug possession statute. But in this case, the only evidence to support either charge was the presence of the baggie with meth residue in the defendant’s pocket. No doubt there will be disagreement about whether prosecutors faced with these choices should charge the offense with the greatest penalty (as John Ashcroft directed federal prosecutors in 2003—see discussion here) or the offense with the least severe penalty, as Shondel seems to require in at least some cases. But as Doug Berman has often noted, in a world in which concerns about sentencing disparities tend to focus on judicial discretion, more efforts to regulate prosecutorial charging decisions might be overdue.

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4 Responses

  1. Orin Kerr says:

    Interesting post. A question, though — can you explain a bit why you think this case suggests that “more efforts to regulate prosecutorial charging decisions might be overdue”? I’m not familiar with Shondel, but off the top of my head I would think room for good faith disagreement as to how such a case should be charged would be an argument for prosecutorial discretion rather than an argument for judicial control.

  2. Alice Ristroph says:

    Thanks for the question. First, I’d note that “judicial control” is not necessarily the only or best way to regulate prosecutorial discretion. One interesting alternative might be guidelines for charging decisions, developed by sentencing commissions and/or codified by legislatures (analogous to sentencing guidelines); Ron Wright discusses some efforts along these lines in a recent symposium contribution:

    http://www.columbialawreview.org/articles/index.cfm?article_id=767

    On the broader question of whether prosecutorial charging discretion should be regulated at all, I suppose it’s a question of whether we’re troubled by sentencing disparities that are produced by “good faith” disagreement rather than racial or other forms of bias. It seems to me that many of the sentencing disparities traceable to *judicial* discretion are also products of good faith disagreement — different judges disagree, in good faith, as to what the appropriate sentence should be. If such disparities are cause for reform notwithstanding their origins in good faith disagreement, it seems that sentencing disparities traceable to charging decisions might be similar targets for regulation.

  3. Orin Kerr says:

    Thanks, Alice. Statutory guidelines for charging decisions sound promising; in a properly designed criminal law system, the statutes themselves might even be those guidelines.

    At the same time, I don’t think the issue is whether sentencing disparities are the product of good faith disagreement or something else. As I see it, the key question is whether discretion is exercised in a way that reflects the core values of the citizenry. This makes judicial discretion and prosecutorial discretion somewhat different, I would think: my guess is that prosecutors will tend to be much more politically accountable than judges, and will therefore tend to reach decisions more in accord with public opinion than judges.

  4. katieappliestocollege says:

    Is prosecutorial discretion a good thing because it is likely to accord with public opinion, or is it just not as bad a thing as judicial discretion?