Center on the Administration of Criminal Law

Mission

Decisions by prosecutors are the most significant made in criminal law.

The Center's mission is to promote and defend good government practices in criminal matters. The Center analyzes important issues of criminal law, particularly focusing on prosecutorial power and discretion.

No actor in the criminal justice system wields more power than the prosecutor.  No actor in the criminal justice system wields more power than the prosecutor.  Prosecutors have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges.  In the current system, plea bargaining or charge bargaining is the norm, with well over 90% of cases never going to trial before a judge or jury. This means that a prosecutor’s decision about what charges to bring and what plea to accept amounts to a final adjudication in most criminal cases.  Because numerous laws govern similar behavior and are written broadly, prosecutors often have a choice of charges, which often, in turn, means a choice of sentence as well.  With the prevalence of mandatory minimum laws, a prosecutor’s decision to bring or not bring charges can dictate whether a defendant receives a mandatory five-, ten-, or twenty-year term, or even a life sentence, or whether he or she is sentenced far below that floor. In addition, in many jurisdictions, including at the federal level, prosecutors often dictate the sentence even in cases that do not involve mandatory minimums.  For example, although recent Supreme Court decisions have revamped federal sentencing law to relax the effect of the United States Sentencing Guidelines, in the vast majority of cases judges continue to sentence according to the Guidelines or depart only with a government motion.  Indeed, cooperation is the most common ground on which federal judges depart from the recommended Sentencing Guidelines range, and it is the only way for most defendants to avoid a mandatory minimum statutory term. Departures for cooperation require a motion from the prosecutor. The prosecutor thereby makes the relevant factual findings, applies the law to the facts, and selects the sentence or at least the sentencing range. 

In the United States today, the prosecutor has therefore become not only a law enforcer, but also the only adjudicator in the overwhelming majority of cases.  Prosecutors are the ones making the determination of guilt.  Prosecutors are the ones setting sentences. 

Prosecutorial discretion is the central issue in criminal justice today at all levels of government.Prosecutorial discretion is therefore the central issue in criminal justice today at all levels of government.   Despite its unquestioned importance, there is a dearth of research on how prosecutors exercise their discretion, how they should exercise their discretion, and what mechanisms could be employed to improve prosecutorial decisionmaking.  The Center fills this gap in our knowledge by dedicating itself to identifying the best prosecutorial practices, formulating improved practices, and suggesting avenues of reform.  The Center seeks to spread the adoption of these best practices through its scholarly, litigation, and public policy components.

The Center’s research explores all levels of government, including state and local.  State and local prosecutors account for the overwhelming majority of prosecutions nationwide.  Almost 90% of inmates serving time in the United States are incarcerated as a result of violations of state laws.  Despite the primacy of non-federal prosecution, academics and research institutes pay disproportionate attention to federal cases, with more data collected, and more analysis of, federal prosecution than state prosecution.  The Center addresses this imbalance by focusing on state and local as well as federal prosecution and by collecting empirical data regarding state and local prosecutors.  The Center then seeks to transport and cross-fertilize best practices from state and local “laboratories” to one another, from state and local authorities to federal prosecutors, and vice versa. 

The Center’s focus on government practices in criminal cases and on the exercise of prosecutorial power and discretion, its research-based approach, and its diversity of work make it the first and only organization of its kind.

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