NCJ Number
129368
Date Published
1991
Length
18 pages
Annotation
This chapter focuses on the initial charging decisions made by prosecutors and upon controls other than the preliminary examination and the grand jury upon prosecutorial discretion in making those initial decisions.
Abstract
In deciding whether to bring formal charges against a suspect, a prosecutor considers a variety of factors, including the strength of the evidence, the suspect's background and characteristics, the costs and benefits of obtaining a conviction, and the attitude of the community toward the offense the suspect is believed to have committed. Although the prosecutor's discretion in making initial charging decisions is substantial, there are some limits on it. The preliminary examination and the grand jury are intended to ensure there is sufficient evidence to bring serious charges and to review the wisdom of bringing charges even when there is sufficient evidence to do so. In Wayte v. United States (1985), the U.S. Supreme Court considered whether a passive enforcement policy under which the government prosecutes only those who report themselves as having violated the law, or who are reported by others, violates the first and fifth amendments. In this case, the petitioner was indicted for knowingly and willfully failing to register with the Selective Service. The petitioner moved to dismiss the indictment on the grounds of selective prosecution, contending that he and other indicted nonregistrants were selected for prosecution because they were "vocal" opponents of the registration program. The Court rejected the petitioner's argument, reasoning that passive enforcement was the only effective interim solution available to implement the government's compelling interest. Case notes are included.