Prosecutorial Guidelines and the New Terrain in New Jersey

Abstract

This symposium essay chronicles the efforts of the New Jersey courts and legislature over the last two decades to promote more uniform and accountable decisions from prosecutors in the state. Three features of these doctrines make them worth considering as a model elsewhere, as a way to scrutinize and regularize prosecutorial discretion.

First, these prosecutor accountability doctrines were targeted to the charging decisions with the most direct effects on the traditional judicial functions in sentencing, such as the use of mandatory minimum sentences. The courts interpreted this subset of criminal laws to require the attorney general to draft statewide charging guidelines to promote more uniform prosecutorial choices throughout the state. Second, the doctrines promoted more transparency in prosecutorial decisions as the key strategy to more consistent and less arbitrary charging. Courts required New Jersey prosecutors in particular cases under these specialized statutes to submit a written explanation of how the prosecutor planned to apply the charging guidelines in the case at hand. Third, the courts pushed the prosecutors to defend their charging policies periodically, both in particular cases and at the systemic level.

This innovative doctrine could reorient our thinking about what is possible and desirable for the control of prosecutorial discretion. The judge-centered strategy of constitutional litigation to develop rules of criminal procedure, a strategy that transformed the practices of police departments during the middle of the twentieth century, is not a promising model for controlling the prosecutor. Instead, a recent school of legal scholarship has begun to explore an internal alternative, tracking the impact of prosecutorial office structures and policies on the consistency and accessibility of charging and dispositions. Developments in New Jersey could contribute to this line of inquiry by showing how judicial opinions and legislation can promote more and better internal prosecutorial regulation.

Keywords: Prosecutorial Discretion, Charging, Plea Bargaining, Prosecutorial Guidelines

JEL Classification: K14, K41