Prosecutorial Discretion
Federal prosecutors cannot charge every crime they could prove — and the power to decide who gets investigated, who gets charged, and how hard the government fights determines who goes to prison and who goes free, long before a jury is seated.
The short version
- Prosecutorial discretion — the authority to decide whether to investigate, charge, plea bargain, and how aggressively to seek punishment — is the most consequential largely unreviewable power in the federal criminal justice system. Courts have ruled that charging decisions are almost entirely insulated from judicial scrutiny under United States v. Armstrong (1996).
- A 2014 Human Rights Watch report documented that federal prosecutors routinely threaten defendants with charges carrying mandatory minimum sentences to coerce plea agreements, a practice sometimes called the 'trial penalty' — defendants who refuse to plead guilty and lose at trial receive sentences on average three times longer than those who plead.
- The U.S. Attorneys' Manual (now the Justice Manual) governs how federal prosecutors are supposed to exercise discretion — but it is internal policy, not law, and political appointees can override or rewrite it at any time.
- Selective prosecution — charging someone based on their race, religion, or political views — is unconstitutional under United States v. Armstrong, but the evidentiary standard for proving it is so high that successful selective prosecution claims are vanishingly rare, even in documented cases of racially disparate charging.
What it is
No law enforcement system has the resources to investigate and prosecute every crime within its jurisdiction. Federal prosecutors are charged with enforcing a criminal code that contains more than 4,500 federal crimes, spanning everything from insider trading to the destruction of mailboxes. The gap between what could theoretically be charged and what actually gets charged is enormous — and everything in that gap is filled by prosecutorial discretion. The decision to open an investigation, to convene a grand jury, to seek an indictment, to offer a plea agreement, to recommend a sentence, and to appeal an outcome are all discretionary choices made by prosecutors who are, at the federal level, political appointees or employees supervised by political appointees. The law provides the outer boundary of what can be charged. Discretion determines what is.
Federal prosecutors exercise discretion at multiple levels. U.S. Attorneys — the politically appointed heads of the 94 federal judicial districts — set enforcement priorities for their offices. These priorities, which determine which types of crime receive investigative resources and which are deprioritized, shift substantially between administrations. The Obama DOJ directed U.S. Attorneys to deprioritize marijuana enforcement in states that had legalized it; the Sessions DOJ reversed that policy. The Trump DOJ directed prosecutors to seek the most serious provable charge in every case, reversing the Holder DOJ's policy of reserving mandatory minimum charges for high-level drug offenders. These are not small policy variations — they determine how many people go to prison, for how long, and what the composition of the federal prison population looks like. Below the U.S. Attorney level, individual line prosecutors make daily decisions about which cases to pursue, which to decline, what to offer in plea negotiations, and how hard to fight at trial. The Justice Manual provides guidelines, but line prosecutors have enormous de facto latitude.
The plea bargaining system amplifies the significance of prosecutorial discretion beyond any single charging decision. Approximately 97 percent of federal criminal convictions are the result of guilty pleas. A defendant who goes to trial faces not just the evidence the government has assembled but the risk of conviction on the most serious charges the prosecutor can bring — charges that, under federal sentencing guidelines and mandatory minimum statutes, may carry sentences measured in decades. The U.S. Sentencing Commission found that defendants who exercised their constitutional right to trial received sentences approximately three times longer than those who pled guilty to similar conduct. This 'trial penalty' means that the prosecutor's initial charging decision — which the defendant may have no practical ability to contest — functions as the effective sentence determination in the vast majority of federal cases. The trial is theoretical; the plea is the system.
Selective prosecution — the use of criminal charges to target specific individuals based on protected characteristics or political affiliation — is prohibited by the Equal Protection Clause of the Fourteenth Amendment. But the Supreme Court's ruling in United States v. Armstrong (1996) made selective prosecution claims nearly impossible to litigate successfully. To obtain discovery into a prosecutor's charging decision, a defendant must first make a 'substantial threshold showing' that similarly situated individuals of a different race — or, in political cases, of different political affiliation — were treated differently and that the decision was motivated by discriminatory intent. Because the prosecutor's internal communications and decision-making process are protected, defendants must make this showing without the evidence that would prove it. In practice, the constitutional prohibition on selective prosecution exists on paper; the evidentiary standard makes it unenforceable in court.
Why it matters
The politicization of prosecutorial discretion is not always visible in individual cases. It is most clearly visible in aggregate patterns: which types of crime receive investigative priority; which communities bear the highest rates of federal prosecution; which financial crimes are aggressively pursued and which are declined. The Obama DOJ's decision not to prosecute any senior Wall Street executives following the 2008 financial crisis — despite extensive public documentation of fraud, misrepresentation, and reckless conduct — was a discretionary choice. So was the Bush DOJ's prosecution of the Enron executives who destroyed the company's employees' pension funds. Both choices were defensible on legal grounds; both reflected the priorities and risk tolerances of the administrations that made them; both produced consequences measured in billions of dollars and hundreds of thousands of lives.
The weaponization of prosecutorial discretion against political opponents is distinguished from ordinary policy disagreement by a specific pattern: investigations opened or charges brought not because the evidence was sufficient and the legal violation was clear, but because the target was politically inconvenient. The firings of U.S. Attorneys in 2006 became a scandal because internal DOJ documents revealed that at least some of the fired attorneys had been dismissed for failing to bring voter fraud prosecutions the White House wanted — prosecutions the attorneys had determined were not supported by the evidence — and for pursuing public corruption cases against Republican officials the White House did not want pursued. That is selective prosecution at the institutional level: using the power to hire and fire prosecutors to produce the charging decisions a political administration desires.
The post-2017 period produced new variants of prosecutorial discretion as political weapon. The DOJ's intervention in the Roger Stone sentencing — overriding career prosecutors' sentencing recommendation after a presidential tweet — was a case of discretion exercised at the penalty phase rather than the charging phase. The dismissal of charges against Michael Flynn — a case in which Flynn had already pleaded guilty — involved a politically appointed U.S. Attorney filing a motion to dismiss a case that career prosecutors had closed with a guilty plea, citing legal arguments that a federal district court judge found so unpersuasive that the judge appointed an independent lawyer to argue against dismissal. The D.C. Circuit eventually ordered dismissal on procedural grounds; Flynn was subsequently pardoned. Both cases involved the use of prosecutorial discretion — the power to drop cases — as a tool of political protection.
The structural problem with prosecutorial discretion as a site of political abuse is that the remedies are as blunt as the power is granular. Judges have limited authority to second-guess charging decisions. Congress can conduct oversight hearings and withhold appropriations but cannot direct individual prosecutorial decisions without violating the separation of powers. The press can report on patterns of disparate enforcement but cannot compel different outcomes. Career prosecutors can resign — and some do — but cannot block decisions made by political appointees above them. The protection against abuse of prosecutorial discretion is, in the end, the same protection that exists for DOJ independence generally: the professional norms of a career civil service, the political cost of visible abuse, and the expectation that opposing political forces will not allow flagrant misconduct to go uncontested. These protections have proven, historically, to be unequal to the task in the cases that mattered most.
Sources & Further Reading
- United States v. Armstrong (1996)
- The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction
- An Offer You Can't Refuse: How U.S. Federal Prosecutors Force Drug Defendants to Plead Guilty
- Justice Manual
- Dismissal of U.S. Attorneys Controversy
- Only 2% of Federal Criminal Defendants Go to Trial