Top Law Schools

How much discretion does a prosecutor really have? I work at USAO and, while the attorneys do have lots of control, there seems to be this unspoken understanding that no one should go against the grain too much. In other words, if you are fed up with how our drug laws imprison non-violent offenders, there isn't much you can do as a prosecutor. you can do a sweet plea deal but if you really starting showing a "soft" side for these offenders you'll probably end up with no job. Right? or am I wrong?

People sometimes say joining DOJ and becoming a prosecutor to reform it and make things better is like trying to join a gang and reform it from the inside, you can't do much from the inside and you end up legitimizing it more so than helping to get rid of unjust practices. before long someone will see what you're doing and fire you.

the reason I'm asking this in an employment forum is because i think a lot of people struggle with this question. i want to be a prosecutor to change how unfair the criminal justice system works, but is that even possible from the inside?

marcusmodo wrote:i want to be a prosecutor to change how unfair the criminal justice system works, but is that even possible from the inside?

What does this even mean? Prosecutors don't make policy, they enforce it. Yes, you have a lot of discretion, but you can't pass on prosecuting drug offenders because you disagree with the laws it's your job to enforce.

They hire you to enforce the laws on the books. That's your job, and if you don't do it, you lose it.

right, but enforcement is highly racist. white persons use drugs more than black, yet we all know who is sitting behind bars for most of these non-violent offense. prosecutors have discretion to enforce laws, and they also can offer diversionary programs or other measures to prevent someone from being thrown into a system that does little to re-enter people into society.

Prosecutors have a lot of discretion regarding whether or not to bring charges, which charges to bring & formulating plea deals. Sometimes they just drag their feet waiting for the S/L to run.

P.S. If you're not the boss in your division of the prosecutor's office, then your level of discretion is very small.

marcusmodo wrote:right, but enforcement is highly racist. white persons use drugs more than black, yet we all know who is sitting behind bars for most of these non-violent offense. prosecutors have discretion to enforce laws, and they also can offer diversionary programs or other measures to prevent someone from being thrown into a system that does little to re-enter people into society.

Within whatever guidelines your boss has set. If (s)he wants more diversionary programs, you'll be good. If they want a crackdown, then get in or get out.

But if your whole goal is to change drug laws or let people off the hook, the you're going to be sorely disappointed.

Many USAO office watch your numbers and how many convictions you get, what types of deals you cut, etc. There isnt much you can do before someone questions your motives, right? I mean the whole get tough on drug crimes movement is alive and thriving all across the country and if you try to do anythign else, you can be sure that you wil likely have no job soon.

US Attorneys are political appointments.

Yes. Prosecutors are probably the most powerful people in the criminal justice system, even more than the judge or jury.

Now if you're asking do individual prosecutors have a lot of discretion, that probably depends on the office. I'd still say the average young prosecutor has more discretion and less oversight from his boss than a comparable person in private practice or in defense work. Not having a concrete client makes it a lot easier, and the prosecutor's offices I am familiar with start giving individual prosecutors significant discretion and power by like their second or third year.

Obviously they still have bosses though, and doing stupid shit for personal reasons is going to get your into hot water, just like any other job. Seems like you equate discretion with complete control and no possibly recourse. Obviously they don't have that. But compared to most other jobs, there is significant discretion.

So i guess if i want to prosecute, i need to find an office that is fair and recognizes that getting smart on crime is better than tough on crime.

Answers may vary depending upon the office. State attorneys/local DAs are likely to vary much more than US Attorneys offices. Typically the Feds invest a lot of resources prior to indicting, while states & local offices are limited by scant resources so what may appear to be discretionary may not focus so much on the individual or on the type of crime, but on allocation of resources at the local & state level.

USAOs have discretion but they are bound by the Principles of Federal Prosecution http://www.justice.gov/usao/eousa/foia_ ... 27mcrm.htm, which severely couch their discretion.

Discretion amongst state prosecutors vary much more. Since most local DAs are elected, they set their own policies which their assistant prosecutors must follow.

.

marcusmodo wrote:So i guess if i want to prosecute, i need to find an office that is fair and recognizes that getting smart on crime is better than tough on crime.

Some friendly advice, do NOT express your opposition to drug laws/enforcement in interviews. Even if they ask you (which they might), "What would you change about the criminal justice system?"

mockingJD wrote:

marcusmodo wrote:So i guess if i want to prosecute, i need to find an office that is fair and recognizes that getting smart on crime is better than tough on crime.

Some friendly advice, do NOT express your opposition to drug laws/enforcement in interviews. Even if they ask you (which they might), "What would you change about the criminal justice system?"

great advice

Sounds like you're heart is really in criminal defense, so why not go into a PDs office or private practice. I interned at a small criminal defense firm this summer and found it incredibly exciting and much more in line with my own moral beliefs than prosecution.

romothesavior wrote:I'd still say the average young prosecutor has more discretion and less oversight from his boss than a comparable person in private practice or in defense work.

This isn't really true. In defense they just want you to represent the client to the best of your ability and they leave the tactical decisions to you. In prosecution you have to answer to a supervisor when bringing charges or cutting deals, and there are typically standard office policies regarding these decisions.

marcusmodo wrote:Many USAO office watch your numbers and how many convictions you get, what types of deals you cut, etc. There isnt much you can do before someone questions your motives, right?

Exactly. You are never going to get ahead, and may very well be let go, if as a young prosecutor you aren't racking up misdemeanor convictions.

lawschoolftw wrote:Sounds like you're heart is really in criminal defense, so why not go into a PDs office or private practice.

This. If you want to help people whom you feel are being screwed by the system then sign up for the team dedicated to defending their rights, not the team trying to throw them in jail. Seems pretty common sense.

marcusmodo wrote:People sometimes say joining DOJ and becoming a prosecutor to reform it and make things better is like trying to join a gang and reform it from the inside, you can't do much from the inside and you end up legitimizing it more so than helping to get rid of unjust practices.

Pretty accurate

seatown12 wrote:

romothesavior wrote:I'd still say the average young prosecutor has more discretion and less oversight from his boss than a comparable person in private practice or in defense work.

This isn't really true. In defense they just want you to represent the client to the best of your ability and they leave the tactical decisions to you. In prosecution you have to answer to a supervisor when bringing charges or cutting deals, and there are typically standard office policies regarding these decisions.

I have to respectfully disagree. You think a client who is facing criminal penalties is going to be hands off about their future?

romothesavior wrote:

seatown12 wrote:

romothesavior wrote:I'd still say the average young prosecutor has more discretion and less oversight from his boss than a comparable person in private practice or in defense work.

This isn't really true. In defense they just want you to represent the client to the best of your ability and they leave the tactical decisions to you. In prosecution you have to answer to a supervisor when bringing charges or cutting deals, and there are typically standard office policies regarding these decisions.

I have to respectfully disagree. You think a client who is facing criminal penalties is going to be hands off about their future?

Yes, they are. The majority of defendants just do what their lawyer tells them to do.

kalvano wrote:

romothesavior wrote:

seatown12 wrote:

romothesavior wrote:I'd still say the average young prosecutor has more discretion and less oversight from his boss than a comparable person in private practice or in defense work.

This isn't really true. In defense they just want you to represent the client to the best of your ability and they leave the tactical decisions to you. In prosecution you have to answer to a supervisor when bringing charges or cutting deals, and there are typically standard office policies regarding these decisions.

I have to respectfully disagree. You think a client who is facing criminal penalties is going to be hands off about their future?

Yes, they are. The majority of defendants just do what their lawyer tells them to do.

This.

kalvano wrote:

romothesavior wrote: I have to respectfully disagree. You think a client who is facing criminal penalties is going to be hands off about their future?

Yes, they are. The majority of defendants just do what their lawyer tells them to do.

Clients obviously dictate goals for the ultimate outcome of their case (like "I won't plead to the felony"), but they certainly aren't in control of the tactical decisions along the way. That would be ineffective assistance for sure.

seatown12 wrote:

kalvano wrote:

romothesavior wrote: I have to respectfully disagree. You think a client who is facing criminal penalties is going to be hands off about their future?

Yes, they are. The majority of defendants just do what their lawyer tells them to do.

Clients obviously dictate goals for the ultimate outcome of their case (like "I won't plead to the felony"), but they certainly aren't in control of the tactical decisions along the way. That would be ineffective assistance for sure.

Check you Strickland

Cogburn87 wrote:

seatown12 wrote: Clients obviously dictate goals for the ultimate outcome of their case (like "I won't plead to the felony"), but they certainly aren't in control of the tactical decisions along the way. That would be ineffective assistance for sure.

Check you Strickland

You don't think clients have plans for their defense that wouldn't meet an objective standard of reasonableness? lol

Some prosecutors i've talked to at the state level said they do not have to prosecute crimes they don't believe in (eg., death penalty). Instead, someone else in the office can take care of that. Obviously, you can't use this for too many different crimes or you'll probably be out of a job.

seatown12 wrote: You don't think clients have plans for their defense that wouldn't meet an objective standard of reasonableness? lol

We're talking about a standard where an attorney can literally be sleeping during critical portions of the trial and can still satisfy the performance prong. You're also ignoring that there is a prejudice prong.

Finally, there is also the problem that "my counsel let me present the defense I wanted and therefore was deficient" isn't exactly the kind argument that will have a judge jumping to overturn a conviction.

Protip: IAC claims are almost never won. Please never give advice stating that some conduct is "ineffective assistance for sure."