Mimesis Law
2 June 2020

Charging Discretion Starts With The Most Serious Offense

Mar. 9, 2016 (Mimesis Law) — The prosecutor’s discretion in charging the case is arguably the most powerful aspect of the office. Despite that fact, there is very little constitutional or legal guidance offered to prosecutors on its exercise. The United States Attorneys Manual (USAM) offers some general principles that provide guidance to federal prosecutors. While it’s not binding on local prosecutors, it does reflect values that can be observed in many local offices. Particularly relevant here, it states that

[O]nce the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.

In addition to the USAM, the American Bar Association has promulgated an advisory standard regarding the prosecutor’s charging discretion:

The prosecutor should not bring or seek charges greater in number of [sic] degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.

By framing this advisory in the negative, the ABA appears to be taking aim at so-called horizontal and vertical overcharging.  Although, the two standards are quite similar, the ABA’s advisory is silent on whether charging the most serious crime ought to be the norm. Probably owing to the generalized concern that ‘over-charging’ can coerce defendants to accept to plea deals, the ABA failed to address the benefits of charging the most serious offense.

In the comments, the USAM justifies charging the most serious offense in the following way: “

It guarantees that every defendant will start from the same position, charged with the most serious criminal act he/she commits.

It’s hard to argue with that logic. It’s a rule of thumb that is likely to ensure consistency, justice for the victims, and vindicates the policy set by the legislature, which creates the crime and sentence. So, the legislature sets the policy and writes the law, and then the prosecutors take care to make sure that the laws are faithfully and justly applied to the facts at hand.

While prosecutors have wide discretion in this role, it does not mean that the exercise of their discretion is arbitrary. As both standards point out, the prosecutor should consider admissible evidence and the likelihood of convictions on that evidence. Both are circumstances which one would expect lawyers to be able to properly weigh. Thus, the decision to pursue the most serious charge should be based on a competent evaluation of the evidence. This is in contrast to some prosecutors who seek the most serious offense just to fill up the prisons. Conceivably, arbitrary charging decisions would eventually land a prosecutor in ethical trouble.

This policy has the additional benefit of furthering the goals of reforms in other areas. For example, sentencing reform goals typically included ensuring that similarly situated defendants received similar sentences. Charging defendants who commit factually similar offenses with the same offense, i.e. the most serious form of the offense, will indeed lead to greater uniformity at sentencing too.

Moreover, such a policy potentially encourages more transparency and accountability. When a prosecutor carefully arrives at the most serious charge, then the charging document represents the maximal extent of the defendant’s criminal conduct, rather than the charging document being like the criminal equivalent a slip-shod demand letter in a personal injury case. It’s a criminal charge—not an opening offer. So, if the prosecutor truly believes the charges are both just and what a jury would probably convict on, then the prosecutor must have some justification in bargaining the charge down. Presumably that reduction would be repeated in all future, factually similar cases, again promoting uniformity and equality.

On the other side is the argument that the USAM framework will always result in excessive sentences. For instance, the above cited OSU journal article raises concern for a lack of proportionality in “over-charged” cases. Indeed, the prosecutor can and should use discretion in individual cases where the serious charge would be disproportionate. But unless that discretion is used sparingly, it can lead to a systematic problem.

For example, the discretion not to pursue the death penalty in many cases that otherwise would be eligible have led to vast geographic disparities. Opponents of the death penalty decry this as arbitrary. It is definitely not geographically uniform, even within individual states. In less dramatic fashion, the same thing can occur with charging decisions. Although the conduct is criminalized by state law, whether you are charged and convicted is entirely a feature of where the crime was committed.

Further, it is difficult for prosecutors to ensure proportionality in outcomes, nevermind the difficulty of trying to control for divergent outcomes at the charging stage. There are many variables that can impact the consequences a defendant faces. The individual discretion of the judge during sentencing is likely to have a large impact. Certain defendants may, after charging, demonstrate eligibility for programs like intervention in lieu of conviction. And there may be early release and other programs that may result in a particular defendant not serving the full sentence. On the other hand, a prosecutor can control proportionality by ensuring all similar defendants get charged with the same level of offense.

Moreover, charging decisions still receive individualized consideration. Both the specific nature of the defendant’s conduct and probability that a jury would convict on the charge are still relevant to a prosecutor’s charging decision. Moreover, the USAM gives a list of seven factors to consider prior to charging a defendant:

  1. Federal law enforcement priorities;
  2. The nature and seriousness of the offense;
  3. The deterrent effect of prosecution;
  4. The person’s culpability in connection with the offense;
  5. The person’s history with respect to criminal activity;
  6. The person’s willingness to cooperate in the investigation or prosecution of others; and
  7. The probable sentence or other consequences if the person is convicted.

Thus before a prosecutor settles on pursuing the most serious form of the offense, there are multiple facts and procedures that could persuade a prosecutor to pursue a lesser charge or no charge at all. Moreover, any initial unfair harshness can usually be ameliorated through amending the charges, pleas, and sentencing recommendations. In short, charging the most serious form of the offense will not automatically led to unjust convictions and sentences.

Moreover, the value of using the USAM framework reduces the impact of the personal bias of a particular prosecutor. For example, a prosecutor may think theft from elderly family members by another family members is not a big deal (‘don’t bother me, it’s a civil matter’), yet theft from a non-profit is viewed as a grave crime. Although many aspects of the two crimes will be similar, the charges will be widely divergent degrees, perhaps to the point where charges are never filed against grandsons who steal from grandma. This outcome is unjust not only to the victims but to the defendants, when one is punished more severely simply because the prosecutor cares about one crime more than the other.

To borrow from a quip about equity, the prosecutor’s charging decision should not vary by the length of the prosecutor’s foot. One the other hand, a principle-based explanation for the use of discretion, like the one offered by the USAM, helps minimize the disparity similarly situated defendants face.

8 Comments on this post.

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  • Richard G. Kopf
    9 March 2016 at 11:20 am - Reply


    Great analysis.

    One more thing, under the federal Sentencing Guidelines, if one doesn’t charge the most readily provable serious offense, the Guidelines are undercut very significantly. If the government decides later that a Rule 11(c)(1)(C) plea to a lesser offense is in the interests of the Executive, a judge may then exercise his or her discretion to accept or reject the plea. “Charge bargaining” like “fact bargaining” under the Guidelines is essentially a scam on the people (and the federal judiciary) unless it is entirely open to public scrutiny.

    All the best.


    • shg
      9 March 2016 at 12:04 pm - Reply

      Don’t be too harsh on “fact bargaining,” as it often inures to the people’s benefit. Say, they bargain to the reduce the “fact” to under 50 kilos that actually exist (when the balance of the 1500 kilos never existed except in their fertile imagination) and the defendant agrees to the “fact” he was guilty of a conspiracy to avoid the judge sentencing him to the huge quantity of imaginary drugs. Doesn’t seem too offensive to the people. As to the federal judiciary? Well, they’re a hard bunch to read.

      • Richard G. Kopf
        9 March 2016 at 2:01 pm - Reply


        Wanna fact bargain, OK with me, but put the bargain into a Rule 11(c)(1)(C) plea agreement so I can scream at the AUSA to explain why he/she is so willing to subvert the Guidelines. By the way, it also serves the salutary purpose of putting the Government on the hook for sweet deals that may come back to bite somebody in the ass! Think of “swallowing” a gun, only to see the kid blow somebody away two or three years later after the puke has done a short stint in a camp.

        Federal prosecutors usually have a good explanation now, but it wasn’t always so. Years ago it was not infrequently the case that the AUSA was lazy and didn’t want to spend time before a jury–not so with the more recent crop.

        All the best.


        • shg
          9 March 2016 at 2:22 pm - Reply

          I remember when “use and carry” meant more than an unloaded gun in a locked draw in a stash house 27 miles away.

          • Richard G. Kopf
            9 March 2016 at 2:29 pm -


            Great example–where I would happily approve a Rule 11(c)(1)(C) plea agreement. All the best.

            All the best.


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