A new documentary from the Federalist Society and Heritage Society has raised significant concerns about federal criminal prosecutions in the US judicial system, and the role therein of federal prosecutors. Among the issues highlighted by the documentary are standards-less decisions about who is being prosecuted; the capacity of highly-discounted plea bargaining to effectively extort guilty pleas; and, the role of mandatory minimums in buttressing the modern-day system of plea bargaining.

Bennett L. Gershman, Professor of Law at Elisabeth Haub School of Law at Pace University and a former prosecutor remarked, “I see the prosecutor as wielding the most enormous power of any government official. I am talking about exercising legitimate power, legitimate power that can deprive a person of his liberty, destroy a person’s liberty, and actually take away a person’s life in those jurisdictions that have capital punishment.

Prosecutorial Discretion

Steven H. Cook, Associate Deputy Attorney General at the Department of Justice speaks in favour of prosecutorial discretion as a gatekeeping function, and makes the point that not every crime that is committed can or should be prosecuted. But which crimes to prosecute in this case?

In considering this question, Zac Bolitho, Assistant Professor of Law at Campbell University recalls Justice Jackson’s 1940 speech which laid out the maxim that prosecutors are required to select those cases for prosecution in which “the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”1

However, Clark Neily, Vice President for Criminal Justice at the Cato Institute sees the current system as setting up a dual role for prosecutors who are expected to be “an advocate for the Government on the one hand, and an independent officer of the court charged with doing justice on the other”.

Plea Bargaining and Mandatory Minimums

The combined effect of the systems of plea bargaining and mandatory minimums work together in the U.S. justice system is to ensure that defendants who insist on a jury trial risk a far more severe sentence should they be found guilty, in part consequence of which, according to the US. Sentencing Commission, ninety-seven percent of cases before the Federal Courts in 2007-17 were resolved by plea bargain. As Neily puts it, we have “equipped prosecutors with an astonishing array of coercive tools that they can and do bring to bear on people to extract confessions”. 

Prosecutory Immunity

The virtual absence of repercussions for prosecutorial misconduct in Neily’s view creates negative incentives for prosecutors. Neily continues saying that there is “an extensive body of literature that prosecutors routinely get away with jaw-droppingly unethical and improper behaviour”. Internal disciplinary procedures are notoriously law. He concludes that the only solution is for prosecutors to be subject to civil liability.

Prosecutory immunity means, as Gershman points out, that prosecutors can hide evidence or bribe a witness without having to worry about being sued civilly. Moreover, the courts who could oversee the work of the prosecutors exercise “virtually no supervisory authority”.

Whose Problem?

While it is easy to blame prosecutors for this state of affairs, Bolitho added that the proper forum for complaint about mandatory minimum sentences is not at the prosecutors’ door, but at Congress’s, which signed federal offences with mandatory minimum sentences into law.

While the US criminal justice system differs in many important respects from its UK counterpart, British citizens are routinely subject to its provisions, and aspects of the US system are prone to being copies here in the UK. There does seem to be some bipartisan support for reform, but it remains to be seen whether oversight of the federal prosecutorial system can command any significant legislative attention.

The full documentary can be viewed below:



  1. Jackson, Robert H., ‘The Federal Prosecutor’. 1 April 1940. Retrieved from https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf.
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