Prosecutorial Discretion

Issues Highlighted by the Juan Garza Case
Prosecutorial Discretion and Arbitrariness in the Modern History of the Death Penalty
Prosecutorial Discretion in the Federal Death Penalty
Prosecutorial Discretion at the State Level
Related Links

Prosecutorial discretion can result in arbitrariness in sentencing – defendants may receive widely varied sentences for crimes of similar severity. Both state and federal prosecutors can exercise discretion in terms of whom they chose to prosecute, for what crime, and what sentence they will seek. However, since the reinstatement of the federal death penalty in 1988, the discretion of the U.S. Attorney General has increasingly superseded the discretion of local federal prosecutors.

Issues Highlighted by the Juan Garza Case

The issue of prosecutorial discretion arose early in the Juan Garza case. Garza could have been tried in the state of Texas rather than at the federal level. U.S. Attorney General William Barr also could have chosen not to seek the death penalty, as was done with Garza’s codefendants.

During Garza’s appeals, his attorneys pointed to the issue of the location of his crimes and his race as factors that made him more likely to receive the federal death penalty. Garza’s attorneys referred to the Department of Justice’s Report on the Federal Death Penalty System: A Statistical Survey (1988-2000). The DOJ report showed that from 1988 to 2000, 30% of all capital cases originated in Texas. Furthermore, Hispanics were 2.3 times more likely than non-Hispanics to be authorized by the Attorney General for federal capital prosecution. Garza, a Hispanic man from Texas, was tried during the timeframe of the study, raising the question whether the federal government was more likely to seek the death penalty for defendants like Garza.

Prosecutorial Discretion and Arbitrariness in the Modern History of the Death Penalty

In Furman v. Georgia (1972), the Supreme Court held that the death penalty violated the Eighth Amendment’s ban on cruel and unusual punishments because it was applied in an arbitrary manner. Under the Eighth Amendment, a penalty is considered unconstitutional if it is administered arbitrarily or discriminatorily. The Supreme Court found that the death penalty was being imposed unpredictably and infrequently. The Court effectively voided every state’s death penalty statute, thereby commuting the sentences of all death row inmates around the country and suspending the operation of thedeath penalty.

Following Furman, states began enacting new statutes to lessen the arbitrariness in capital sentencing. In 1976, Georgia’s guided discretion statute, as well as statutes in Florida and Texas, was approved when the Supreme Court decided Gregg v. Georgia . The Court held that some of the new death penalty statutes were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

Eleven years after Gregg, the Supreme Court examined whether statistical evidence linking race to the outcome of capital cases established a constitutional violation (McCleskey v. Kemp (1987)). McCleskey, an African-American death row inmate, presented the Court with a sophisticated statistical analysis showing a pattern of racial disparities based on the race of the victim in death sentences. The study, conducted by Professor David Baldus, examined the death penalty in Georgia and found that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing African-American victims. McCleskey asked the Court to find that his death sentence was unconstitutional under the equal protection clause of the Fourteenth Amendment and under the cruel and unusual punishments clause of the Eighth Amendment. The Court denied both claims, reasoning that Baldus’ study by itself was insufficient to prove the death penalty was being applied in an arbitrary or discriminatory manner. (See Race and the Death Penalty for more information on the McCleskey case and Baldus findings.)

In United States v. Bass (2002), the U.S. Supreme Court reversed a Sixth Circuit opinion upholding a federal court's decision to grant defendant John Bass's discovery motion based on selective prosecution. Bass alleged that the government was seeking the death penalty against him because of his race; his motion to discover the Government's capital charging practices was granted. The Sixth Circuit found that Bass had made a threshold showing based on national statistics that "the United States charges blacks with a death-eligible offense more than twice as often as it charges whites." The U.S. Supreme Court, however, found that Bass had not made a threshold showing for a selective prosecution case, which requires evidence of both discriminatory effect and discriminatory intent. The Court reversed the Sixth Circuit, holding that a discriminatory effect could not be found because "raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.”

Prosecutorial Discretion in the Federal Death Penalty

In the past decade there has been significant research on the use of the federal death penalty, with varying results. The Department of Justice’s (DOJ) 2000 Report on the Federal Death Penalty System: A Statistical Survey (1988-2000) found racial and geographic disparities in prosecutions; subsequent DOJ reports did not find such disparities.

The First DOJ Study

The Report on the Federal Death Penalty System: A Statistical Survey (1988-2000) found racial disparities, including the fact that 80% of the cases submitted by federal prosecutors for death penalty review from 1995 to 2000 involved racial minorities as defendants. U.S. Attorneys were almost twice as likely to recommend the death penalty for a black defendant when the victim was non-black as when the victim was black. Likewise, white defendants were almost twice as likely as a black or “other” defendant to be offered plea agreements resulting in the government's withdrawal of intent to seek the death penalty.

The 2000 DOJ survey also reported large disparities in the geographical distribution of federal death penalty recommendations. From 1995-2000, 42% of the federal cases submitted to the Attorney General for review came from just 5 of the 94 federal districts; 40 of the 94 federal districts never recommended seeking the death penalty for any defendant.

A New Administration

When John Ashcroft succeeded Janet Reno as Attorney General of the United States in early 2001, there were numerous changes in the policies relating to federal capital prosecutions. These changes put more control of the federal death penalty in the hands of the Attorney General. During the Bush Administration under Attorney Generals Ashcroft and Alberto Gonzales, the federal death penalty has been pursued more aggressively, and since 2000, federal death row has more than doubled.

In 2001, five days before the first federal execution in 38 years, Attorney General Ashcroft issued a follow-up report to the DOJ’s study of the federal death penalty a year earlier. The new survey, The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, concluded there was no bias in the use of the federal death penalty.

The new report was widely criticized. U.S. Senator Russ Feingold and Professor Baldus noted that the DOJ failed to complete a thorough analysis of the racial and regional disparities with researchers and experts outside the DOJ. The supplemental report, according to Baldus, also did not clearly address the geographic disparities in the federal death penalty, nor did it “dispel concerns about the exercise of discretion by U.S. Attorneys in the post-authorization stage of the process.” Baldus noted that whites were more likely than blacks to enter into plea agreements for non-capital charges, thus eliminating the threat of the federal death penalty in those cases.

A 2006 study of federal death penalty cases from 1995 to 2000 by the RAND Corporation also found no evidence of racial bias. Even though the investigators found that the death penalty was sought more often against defendants who murdered white victims, researchers ultimately concluded that the characteristics of the crime, rather than the racial characteristics of the victim or the defendant, could be used to make accurate predictions of whether federal prosecutors would seek the death penalty. This study was criticized by researchers hired by RAND to be “expert consultants.” One researcher was concerned that the RAND Corporation drew conclusions from a very limited set of data and only used data from a part of the federal death penalty process, not the whole. By using cases selected from the “mid-point” of the process, how a case comes to be selected for the federal death penalty, as well as what happens after it is selected (i.e., possible plea agreements), was left out (see Racial and Geographical Disparities in the Federal Death Penalty (95 KB) ).

Prosecutorial Discretion at the State Level

State prosecutors have sole discretion whether to pursue the death penalty against a defendant. The financial resources available in a jurisdiction, the views of constituents and the local political climate, and the prosecutor’s own views can affect the likelihood a defendant will face the death penalty. These factors can result in disparities in how often, and for what crimes, the death penalty is sought within a state.

Racial Disparities

Studies of the death penalty continue to find a correlation between sentencing and race, and they (see examples in “Resources”) consistently show that those who kill white victims are much more likely to receive the death penalty than those who kill black victims.

Geographical Disparities

Variations in the philosophies of local prosecutors can affect how and when the death penalty is applied. Regional variation in death sentences suggests arbitrariness in application. Although some variation from state to state is expected, given differences in population, crime rates and laws, in a just system, the law of a particular state would be applied uniformly. However, many states with the death penalty tend to have death sentences concentrated in only one region, meaning that whether a person receives the death penalty depends heavily on where the crime was committed.

Questions for Further Analysis:

• Review evidence of arbitrariness in the resources above. How much, if any, of the arbitrariness is the effect of prosecutorial discretion at the state level? At the federal level? What other factors besides prosecutorial discretion can cause arbitrariness in sentencing?

• Should the decisions of state and federal prosecutors be reviewed on a consistent basis? Who should be responsible for the review? Are there any drawbacks to such a review process? Does it matter whether the local district attorney is elected or appointed?

• Research the number of death sentences throughout a state. For example, compare the number of death sentences from Philadelphia versus those from Pittsburgh (or Houston and Dallas, Los Angeles and San Francisco). What could account for disparities in the number of cases?

• How important are the various factors that go into a prosecutor's decision to seek the death penalty? Discuss the effects of a prosecutor's personal commitment to seeking the death penalty, the local political climate, available jurisdictional resources and the cost of seeking the death penalty, influence of characteristics of the crime (victim and defendant), and higher level political agencies (e.g., the U.S. Attorney General's office). Are there any other factors?

Related Links

The Case of Juan Garza