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Prosecutorial Discretion

Per the electronic NYT of June 23, 2016:

“When it comes to potential criminal charges, there is disagreement among the agencies involved. The inspector general’s office concluded that a “number” of prison employees had committed crimes and, according to the report, forwarded their cases to the Clinton County district attorney’s office for prosecution.”

Having been an assistant prosecutor (Essex County, NJ), I can attest to the potentially inflammatory and subjective art of furthering the interests of justice independently, impartially, and expeditiously, especially where there are widely publicized and active voices loudly demanding the harshest of official responses. Mercy is not ubiquitous. Many want others subjected to the severest of punishments (though this rule rarely applies where one is assessing one’s own flawed conduct).

The public interest generally and public service specifically demand a peculiar sort of hybrid of being – from acting like a follower and obeying the most powerful of voices to acting like a leader and obeying one’s conscience even where it contradicts these potent external voices – the right thing to do is not invariably transparent. Even a good thing to do may present too many conflicts for the imaginative individual.

Notwithstanding standards for the exercise of the prosecutorial function (e.g., see the ABA), reasonable and expert minds may differ. Unsurprisingly, some prosecutors do the right thing for the wrong reasons, and some do the wrong thing for the right reasons. Justice is a topic of longstanding public discussion. But how do we timely know whether favors have been exercised (cf. Madoff)? While binary and algorithmic thinking (e.g., processing the individual against a set of rules exercised by a computer program) may be normal in so many contexts, such an exercise may be worse than prosecutorial discretion because it would be impersonal and static – nothing like real life with dynamic changes and expectations. Hume advised that expecting the future to resemble the past was an important assumption underlying decision-making and perspective, but it may not be justifiable. Appearing to follow established protocol may not be adequate; in some cases, it may be a waste of time:

“… the prison was in “full compliance” with the security measures she inspected, including the accuracy of logbooks as well as tool and contraband control. According to investigators, when they asked (her) whether such visits were useful for detecting security lapses, she replied, “Not really.””