Why do the feds pursue some cases and let others go? The Take Care Clause from Article II of the United States Constitution, as the Department of Justice (DOJ) gives prosecutors discretion when it comes to weighing whether to pursue a case. The provision necessitates that the president take care to execute the laws of the country faithfully, so when a new administration takes power, it can make a judgment as to where to focus and how to enforce criminal laws. Because no justice department has the resources to pursue every single crime, as administrative priorities change, a federal prosecutor has wide discretion in choosing which crimes to pursue, given there is probable cause to bring a case to a grand jury. That discretion encompasses a prosecutor’s ability to discuss diversion agreements and guilty pleas, to negotiate sentencing recommendations, and to deliver immunity in criminal cases.
Prosecutorial Limits
Charging decisions within the scope of a prosecutor’s discretion must contemplate equal protection and due process requirements. Similarly, rules of professional responsibility address statutory provisions related to following clear protocols, including an obligation for prosecutors to act when confronting a wrongful prosecution. Overall, any limits on prosecutorial discretion lean toward a prosecutor’s decision to bring charges, not their decision to decline them.
The Fifth Amendment
Prosecutors are limited in some ways by the Fifth Amendment of the Constitution. For instance, charges require a grand jury indictment for felony offenses. In other words, a grand jury must be offered enough evidence to conclude that there is probable cause to believe a felony offense has been committed. Furthermore, the Fifth Amendment:
- Prohibits selective prosecution based on arbitrary classifications such as gender or race;
- Prohibits vindictive prosecution based on retaliatory justifications;
- Does not allow for charging someone for the same crime twice (double jeopardy);
- Prohibits the deprivation of life, liberty, or property without due process.
Murky Requirements
Prosecutors are not only authorized but are required by law to bring cases involving specific civil rights violations. Likewise, when Congress refers someone for contempt, they expect the DOJ to pursue the case. Nonetheless, the DOJ has taken the position that these requirements cannot supplant prosecutorial discretion–and the Supreme Court has not taken a stand on the matter, leaving the bottom line a bit cloudy.
Another questionable matter lies in a judge’s ability to accept or reject a plea agreement. If the prosecution has agreed to lessen or drop charges, as prosecutorial discretion allows, the ability of a judge to rebuff the deal is in question. It all boils down to the fact that there are no absolutes here.
Fighting Federal Charges
Anyone facing federal charges knows how devastating a conviction can be. The dedicated and experienced criminal defense attorneys at Boertje & Associates always fight for the best possible outcomes for you. To discuss, schedule a confidential consultation in our San Diego office today.