Taming The Dragon: An Administrative Law For Prosecutorial Decision Making

Written in the wake of the Watergate scandal and the pardon of President Nixon, this article critically examines prosecutorial discretion. The authors compare prosecutors to an administrative agency, operating under their respective criminal code instead of a legislative enabling act. Prosecutors exercise discretion at every point in the judicial process, deciding whether to charge, what to charge, and how to proceed after charging. This discretion is greatest at the beginning of the criminal justice process and furthest away from trial. Prosecutors are under limited restraint; while courts have declined to review decisions not to prosecute, judges do have the ability to veto some plea bargains. However, the authors point out a judicial tendency to “rubber stamp” the prosecutorial decisions. In addition to the formal controls available, public opinion also functions as an informal control over prosecutors. The authors also evaluate the advantages and disadvantages of additional controls over prosecutorial discretion; although prosecutors need the freedom to make individual decisions in unique circumstances, the authors argue for a system that protects against arbitrary decisions.