The Policing of Prosecutors: More Lessons from Administrative Law?

Abstract

On a daily basis, prosecutors decide whether and how to charge individuals for alleged criminal conduct. Although many prosecutors avoid abusing this authority, prosecutors’ discretionary decisions might result in biased enforcement, inappropriate leveraging of authority, and a lack of transparency. These problems also arise when agency enforcement officials decide whether to act on conduct that violates a legal prohibition.

An inherent tension between the desire to avoid overburdening the system and the need to prevent inconsistent decisionmaking exists in the exercises of both prosecutorial discretion and regulatory enforcement discretion. It is clear from the similarities between the two that administrative law may offer some important lessons to criminal law. This Article explores the need for transparency and consistency in the exercise of prosecutorial discretion and argues that governments can devise a system similar to regulatory waivers and exemptions to achieve that goal.

To frame this discussion, this Article examines recent recommendations adopted by the Administrative Conference of the United States on how agencies should use discretionary authority to grant waivers and exemptions. This Article posits that prosecutors can increase transparency and consistency when exercising discretion by: (1) adopting systems of prospective waiver; (2) notifying the legislature when laws become outdated; and (3) documenting the rationale behind a decision not to charge an individual. By examining criminal law through the administrative law lens, this Article provides solutions to a familiar problem: the abuse of discretion.

Keywords: Administrative Law, Prosecutorial Discretion, Agencies, Discretionary Authority, Criminal Procedure, Criminal Law