The Decision to Charge
After a suspect has been arrested, and in the absence of a dismissal by the police or a magistrate at first appearance, it must be decided whether to initiate prosecution and, if so, for what crime or crimes. In most American jurisdictions this decision rests with the district attorney.1 In this chapter we will review selected empirical studies bearing on this important decision; investigate the goals, information, and alternatives pertaining to the decision; and assess how what is learned bears on the requirements of rationality.
KeywordsCriminal History Plea Bargaining Crime Reduction District Attorney Guilty Plea
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- 1.For discussion of practices in different jurisdictions, see Miller (1970), McIntyre (1967), and President’s Commission on Law Enforcement and Administration of Justice (1967). In some jurisdictions the police may file charges directly with the court without prior screening by a prosecutor.Google Scholar
- 2.As Newman points out, and as will be demonstrated in this chapter, the decision to charge consists of two components, one qualitative and one quantitative: Qualitatively, the question is whether, in the judgment of the district attorney, the accused ought to be charged with a crime at all, or if in the interest of equity, individualization of justice, or mitigating circumstance, it would be fairer, more just, or sufficient for the purposes of law and the objectives of his office to refrain from prosecuting at all. The quantitative facet relates to the vigor of prosecution once it is determined to be possible and desirable. In some cases the prosecutor may charge a crime as serious as the evidence permits, may multiply charges to their fullest, or may even level “extra-Maximum” charges by invoking habitual-criminal statutes or similar provisions. (1974:608)Google Scholar
- 3.Although sometimes provided by statute, this power originates in common law. See Newman (1974). For discussions of informal charging alternatives, see Remington et al. (1969, esp. pp. 417–419; President’s Commission, 1967).Google Scholar
- 4.For citations and discussions, LaFave (1970), and Comment (1969).Google Scholar
- 5.Although the formal evidence standard to charge is the same as to arrest—”probable cause”—for the prosecutor this standard must be forward looking to the conviction standard of “beyond a reasonable doubt.” See Newman (1966). Miller’s (1970) observations of prosecutorial charging lead him to conclude that “it is not inaccurate to assert that an affirmative initial charging decision usually requires a belief on the part of the prosecutor that the suspect is guilty beyond a reasonable doubt. “ Both limitations on resources and the belief that it is unfair to charge a suspect who cannot be convicted result in this standard. Miller found no evidence in his study to indicate that prosecutors charge suspects who would be unconvictable so as to coerce a guilty plea. On the other hand, McIntyre (1967) reports that unconvictables are sometimes charged— for example, when the police promise that additional evidence will be forthcoming.Google Scholar
- 6.The influence of outside agencies in the decision to charge is documented amply by Miller. He shows that to some extent the police may control the charging decision by their decision not to arrest. That is, if the police decide that prosecution is not warranted, they do not arrest the suspect, effectively negating the prosecutor’s influence. Judicial dismissals serve an analogous function at the other end. Other observational studies report similar interagency influences on charging decisions. Cole (1970) reports that in Seattle the decision whether to charge often is made with other criminal justice agencies in mind, particularly the police.Google Scholar
- 7.The PROMIS system will be discussed more fully in a subsequent section.Google Scholar
- 8.Because the vast majority of persons charged with an offense who subsequently are found guilty are found guilty by virtue of a plea to the charge, and because in most jurisdictions the charge largely circumscribes the available sanctions, the charging decision also can be considered (for some purposes) as a sentencing decision. So conceived, the predictive aim of charging to reduce crime may give many contemporary sentencing theorists considerable pause. See the discussions in Chapter 6.Google Scholar
- 9.As with rejections at screening, Brosi found that the major reasons for postfiling dismissals and nolles were evidence- and witness-related. Plea bargaining was an important factor in some of these later decisions not to charge, whereas again due process problems rarely occurred. For a qualitative comparative study of these decisions, see Mellon et al. (1981).Google Scholar
- 10.For discussions of these systems and their purposes, see Hamilton and Work (1973), Jacoby (1977), and Institute for Law and Social Research (1976).Google Scholar