Principles of Prosecutor Lenience

Abstract

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback. In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.” There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts. Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police. Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

This Symposium Essay offers a framework for evaluating prosecutor lenience. It defines prosecutorial lenience and proposes three principles to guide its exercise: prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant. It then applies the principles in common prosecutorial lenience scenarios, like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. Interestingly, the analysis reveals that, in some circumstances, the principles conflict. Perhaps most significantly, insisting on the first two principles can jeopardize the third. This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

Keywords: prosecutors, progressive prosecution, mercy, lenience