By Paul Cassell Published in The New York Times
on August 19, 2012
Paul Cassell, a former federal prosecutor and federal district court judge, is a professor of law at the S.J. Quinney College of Law at the University of Utah.
Under our constitutional system, federal prosecutors will always wield vast power that is essentially unreviewable in court – any other result would be a clear deviation from the system of separated powers our founders envisioned. But we can take modest steps toward accountability, by making sure that the power prosecutors exercise does not encroach on the functions of the other branches.
We can and should take modest steps to ensure that the power prosecutors exercise does not encroach on the functions of the other branches.The quintessential prosecutorial decision is the charging decision: the ability to file – or not to file – criminal charges. Because the charging decision is a core function of the executive branch, the federal judiciary has long been reluctant to review any set of charges for reasonableness or other basis. What
has changed in recent decades, however, has been prosecutorial control over not only what charges will be filed but also what sentence will result. Congress has enacted a wide range of mandatory minimum sentences for federal crimes (especially those involving illegal drugs), meaning that a conviction will require the defendant to serve a particular sentence – a judge will have no ability to consider the individual circumstances of a defendant or his crime to impose a lesser punishment.
Federal prosecutors’ charging power has been often discussed. But little noticed are perhaps even more important but less visible decisions: the decisions not to file charges. Prosecutors can essentially carve exceptions out of criminal laws by declining to pursue criminal cases for particular offenses or in particular areas, as with the recent decision of the Justice Department that it will not enforce immigration laws against young illegal immigrants. And in particular cases, prosecutors can effectively give crimes their blessing by refusing to file charges – a decision that cannot be reviewed in court.
Whether federal prosecutors wield too much charging power is almost a moot point, because under our system of separated powers, the locus of the charging decision will always remain in the executive branch. At the margins, however, we can and should prevent that power from encroaching on traditional judicial powers, by limiting the number of mandatory minimum prison sentences that attach to federal crimes. With regard to the decisions not to prosecute, the executive branch should not be permitted to nullify legislative branch decisions by refusing to enforce acts of Congress. In individual cases of non-prosecution, prosecutors should be required to consult with those most directly affected – crime victims – before any decision not to pursue a criminal case. And Congress should aggressively respond to executive decisions to nullify criminal statutes, using oversight hearings to create at least some level of ultimate accountability in the court of public opinion and deploying its other powers (the power to confirm or not confirm Justice Department officials and power to appropriate or withhold funding) to prevent blanket decisions to refuse to enforce the law.