vanlandingham: discipline, justice, and command in the u.s. military

8/19/2019 VanLandingham: Discipline, Justice, and Command in the U.S. Military

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Discipline, Justice, and Command in theU.S. Military: Maximizing Strengths and

Minimizing Weaknesses in a SpecialSociety

RACHEL E. VANLANDINGHAM*

ABSTRACT

The military justice system is intentionally designed as the mechanismthrough which powerful figures known as commanders, working throughsubordinate leaders, ensure that exacting behavioral standards necessaryfor successful military operations are met. Military commanders, notlawyers, make the critical legal decision regarding whom to criminallyprosecute within the military’s criminal justice system. This system has itsroots in antediluvian military organizational doctrine as a means to ensurethat authoritarian military commanders in pre-industrial eras could tightlycontrol their typically illiterate, poor, and conscripted male troops in thechaotic and deadly environment of the ancient, and not-so-ancient, battlefield.

While the foundations of the modern American military organizationalstructure and its heart, the military justice system, remain rooted in suchlong-standing behavioral assumptions of how best to control involuntary,frightened human beings on a battlefield in achievement of militaryobjectives, the U.S. military’s disciplinary and criminal system has evolvedover its several centuries of existence. Reformations have occurred inattempts to reconcile this statutory and regulatory schema withconstitutional values, and to soften its rough edges based on the realizationthat justice and discipline are interdependent. Yet the evolution of the post-

Associate Professor of Law, Southwestern Law School; Lt. Col. (ret.), USAF. The author

extends her utmost gratitude to the excellent students of New England Law Review , at whose

kind invitation this article was written for presentation at a Fall 2015 Symposium. She also

thanks her research assistants Jessica Vasquez and Anaeis Minas Masihi for their steadfast

efforts.


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22 New England Law Review v. 50 | 21

World War II military justice system is not over, nor should it be, asmeasures for improving prosecutorial decision-making are recognized ascritically needed across the American criminal justice landscape. The

military should lead this charge for improvement.This Article argues that vesting disciplinary and criminal discretion in

hand-selected individuals who are formally groomed and chosen for their judgment, leadership, and maturity is a systemic strength of the military justice system. However, the lack of prosecutorial standards, opaqueness inhow decisions are made, and insufficient training due to both a dearth ofcomprehensive prosecutorial guidelines and the lack of transparency indecision-making, add up to significant systemic weaknesses. Thissymposium Article argues that the military’s command-centric military justice system is one that can and should be strengthened by a statutorily-required sharing of prosecutorial power with military lawyers, coupledwith implementation of both enhanced transparency and review measures,

as well as robust prosecutorial standards.

INTRODUCTION

Properly designed leader development programs develop trusted leadersof character, competence, and commitment.1

The combined power of the convening authority to determine whichcharges shall be preferred, the level of court-martial, and the venuewhere the charges will be tried, coupled with the idea that this sameconvening authority selects the members of the court-martial to try thecases, is unacceptable in a society that deems due process of law to be thebulwark of a fair justice system.2

Power tends to corrupt and absolute power corrupts absolutely.3

1 HEADQUARTERS , DEP’T OF THE ARMY , FIELD MANUAL 6-22, LEADER DEVELOPMENT 1-1

(2015) [hereinafter FM 6-22], available at www.milsci.ucsb.edu/sites/secure.lsit.ucsb.edu.mili.

d7/files/sitefiles/fm6_22.pdf.2 WALTER T. COX III ET AL., REPORT OF THE COMMISSION ON THE 50TH ANNIVERSARY OF THE

UNIFORM CODE OF MILITARY JUSTICE 8 (2001) [hereinafter COX COMMISSION], available at

http://www.loc.gov/rr/frd/Military_Law/pdf/Cox-Commission-Report-2001.pdf. But see

REPORT OF THE ROLE OF THE COMMANDER SUBCOMMITTEE TO THE RESPONSE SYSTEMS TO ADULT

SEXUAL ASSAULT CRIMES PANEL 2 (2014) [hereinafter RSP REPORT OF ROLE OF THE

COMMANDER], available at http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/

RSP_Report_Annex_Final_20140627.pdf (describing the power of commanders with

convening authority and recommending it remain with commanders and not be transferred to

military lawyers).3 Lord Acton Quote Archive , ACTON INSTITUTE , http://www.acton.org/research/lord-acton-

quote-archive (last visited, Jan. 5, 2016) (adding that “[g]reat men are almost always bad men,


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2015 Discip l ine , Just i ce , and Command 23

The U.S. military criminal justice system, an integral part of the U.S.military that the U.S. Supreme Court famously labeled a special society,differs significantly from criminal justice systems at both the federal and

state levels.4

The many differences marking the military justice system asseparate and unique from U.S. civilian criminal systems flow directly fromthe distinct, though partially shared, purposes of these systems; themilitary justice system’s attributes are teleologically-derived.5 Whereas thegoals of the state and federal criminal justice systems revolve aroundcommunity safety of both property and individuals, “[i]f there is a singlereason for a code of military justice, it is the enforcement of discipline tomanage the peculiar demands of maintaining an effective fighting force.”6

The necessity of maintaining discipline has been used to justify a widerange of distinctions peculiar to the military ’s justice system, similar to theexploitation of military necessity on the battlefield.7 Not only is thespectrum of potential criminal conduct vastly broader than in the civilian

criminal justice systems, the military justice system revolves aroundauthority figures who typically wield far greater power—and carry fargreater responsibility—than any local district attorney or U.S. attorney.These authority figures, known as commanders, have long possessed wide-ranging power over their subordinates both on and off the battlefield. Inaddition to making the decision to criminally prosecute service-membersassigned to their command, non-lawyer commanders also have the rightand responsibility to utilize lesser forms of punishment and administrative

even when they exercise influence and not authority; still more when you superadd the

tendency of the certainty of corruption by authority.”).

4 See Parker v. Levy, 417 U.S. 733, 743 (1971) (“This Court has long recognized that themilitary is, by necessity, a specialized society separate from civilian society.”).

5 WILLIAM WINTHROP , MILITARY LAW AND PRECEDENTS 49 (2d ed. 1920), available at

https://www.loc.gov/rr/frd/Military_Law/pdf/ML_precedents.pdf (“[C]ourts-martial . . . are in

fact simply instrumentalities of the executive power , provided by Congress for the President as

Commander-in-chief, to aid him in properly commanding the army and navy and enforcing

discipline therein.”). 6 LAWRENCE J. MORRIS , MILITARY JUSTICE: A GUIDE TO THE ISSUES 3 (2010); see also JONATHAN

LURIE , ARMING MILITARY JUSTICE Vol. 1, xv (1992) (highlighting the disparate goals of the

civilian versus military justice systems); Geoffrey S. Corn & Chris Jenks, A Military Justice

Solution in Search of a Problem: A Response to Vladeck , 104 GEO. L.J. ONLINE 29, 34 (2015) (“The

Court has long recognized the distinct nature of tribunals established pursuant to this

authority and that these tribunals perform a specialized purposes altogether different from

those that animate the system of civilian justice governed by Article III.”).

7 See generally GARY D. SOLIS , THE LAW OF ARMED CONFLICT: INTERNATIONAL

HUMANITARIAN LAW IN WAR 264 (2010) (“Sometimes, military necessity is invoked when

military convenience is closer to truth.”).

https://www.loc.gov/rr/frd/Military_Law/pdf/ML_precedents.pdfhttps://www.loc.gov/rr/frd/Military_Law/pdf/ML_precedents.pdf


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disciplinary measures to change the behavior of their subordinates. 8 Suchnon-criminal, lesser measures can constitute “career-killers” either byadversely affecting a service-member’s promotion eligibility or outright,

such as when a commander institutes administrative separationprocedures against a service-member.9

Unlike a district attorney, these powerful commanders are given thesevariegated behavioral tools by statute and custom because these samecommanders are concomitantly expected to ensure that thousands of menand women—often quite young men and women—adhere to specificstandards of behavior in the dangerous pursuit of war. Commanders aretasked with ensuring their subordinates act in a certain manner as theyguide them to achieve often dangerous goals. These standards areenshrined in international and domestic laws and regulations.10 Suchstandards and a tight system of control are presumed necessary forachievement of the military’s core mission: defeating and deterring those

labeled as the nation’s enemies while striking the international law of war’s balance between military necessity and humanity.11

The military justice system, broadly defined here to include themilitary’s criminal and non-criminal disciplinary processes, consists ofrules, regulations, and processes that govern human behavior within themilitary.12 It is integral to the U.S. military’s hierarchical, command-drivenorganizational structure: through it, military commanders ensurecompliance with the standards necessary for mission accomplishment. Themilitary justice system’s rules and processes currently pivot on thepresumed leadership qualities inherent in those designated ascommanders, and the ability of such leaders to use sound judgment to,Solomon-like, wisely discipline others by deciding when misconductwarrants criminal prosecution versus lesser means of redress.13 To fulfillsuch demanding roles, military commanders are hand-selected andspecifically “groomed” for command positions, ostensibly because of theirtime-tested abilities to exercise mature judgment, at least according to themilitary’s regulatory criteria.14

8 Military commanders have at their disposal what are considered judicial measures—

criminal prosecutions—and non-judicial tools, such as the punishment procedure established

by Article 15, Uniform Code of Military Justice (UCMJ), as well as disciplinary procedures

ranging from letters of reprimand to administrative separation procedures. See infra Part II.9 See id. 10 FM 6-22 , supra note 1, at v.11 See generally LURIE , supra note 6 , at xv (“Military justice is virtually inseparable from

military discipline which seeks attainment of specific objectives, gained by a military forceprepared for death, if necessary.”).

12 See EVOLVING MILITARY JUSTICE ix (Eugene R. Fidell & Dwight H. Sullivan eds., Naval


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The fact that the military justice system vests the power to levycriminal charges against a service-member—and to subsequently convenea court-martial to decide the validity of such charges—in non-lawyer

military commanders has long been a subject of controversy.15

Numerousreforms have been enacted dealing with commanders’ prosecutorialpowers since George Washington commanded this country ’s first military justice system, a system which predates the U.S. Constitution.16 Majorreforms were enacted primarily in response to Congressional and publicscrutiny prompted by heavy-handed, arbitrary, and unjust prosecutionsthat occurred during World War I and II (as well as unjust summaryexecutions after tainted court proceedings, as in the case of the HoustonRiots in 1917). However, such reforms left largely untouched the unfettereddiscretion of commanders to dispose of allegations of misconduct.17

While these earlier debates carry familiar tones,18 the latest agitation tospur inquiry into why commanders continue to wield such vast power in

military criminal prosecutions occurs in a very different milieu: one of an

Inst. Press, 2002) (describing the military justice system as “the system of rules that governs

the conduct of members of the armed forces and the procedures by which those are

enforced”). 13 By discipline, this Article refers to the ordinary sense of the word, meaning “control that

is gained by requiring that rules or orders be obeyed and punishing bad behavior.” Discipline

Definition , MERRIAM-WEBSTER DICTIONARY , http://www.merriam-webster.com/

dictionary/discipline (last visited Jan. 5, 2016).14 See infra Part II.15 See generally LURIE , supra note 6, at 73, 127 (describing evolutionary stages of the military

justice system that called into question the role of the commander); RSP REPORT OF ROLE OFTHE COMMANDER , supra note 2, at 24 (discussing earlier proposals to modify the role of the

commander in the military justice system).16 See generally LURIE , supra note 6, at 3–6 (describing the first Articles of War, the 1775 and

1776 versions, as “the official foundation of American military justice”). 17 See U. S. ARMY , THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL’S

CORPS , 1775–1975 at 194, 200, 204 (1975), available at http://www.loc.gov/rr/

frd/Military_Law/pdf/lawyer.pdf. See generally MORRIS , supra note 6, at 23–25 (describing the

courts-martial in response to the Houston Riots as “emblematic of many of the shortcomings

of the military justice system”).18 See, e.g. , LURIE , supra note 6, at 135 (outlining a debate that occurred during World War

II, with opponents of vesting prosecutorial discretion in lawyers instead of commanders

stating that “there is ‘no assurance that a corps of lawyers will deal more fairly and justly than

a corps of line officers’”). Lurie further notes that “[t]here remains in military justice an

ongoing tension between those who insist that legal issues must be handled by a separate trial

system . . . and those who claim that the unit commander can never afford to be insulated

from the operations of the military justice system.” Id. at n.32.


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all-volunteer force that represents a tiny fraction of the country, 19 a militaryforce that has long struggled with treating women and homosexualsequally, with its systemic discrimination of both groups legally-sanctioned

by Congress until quite recently.20

Within this very environment, thefailure of commanders to control high rates of sexual assault within themilitary ranks prompted the latest set of debates.21

Reports of high rates of sexual assaults within a military, supposedlytightly controlled by wise commanders with extensive disciplinaryauthority and responsibility, were particularly disturbing considering thefrequent reports within the last few years of toxic leadership within themilitary. Such reports regularly prompt concern that “something may be broken, or at least fractured” within the U.S. military’s leadership corps.22 Such narratives have helped undermine the central organizing feature ofthe military, the hierarchy of command, and focused attention on whatcommanders are doing and not doing in their military justice roles. This

concern about rot at the top of the military, coupled with the scandal of

19 Less than 0.5% of the population serves in the military. Karl W. Eikenberry & David M.

Kennedy, Americans and Their Military, Drifting Apart , N.Y. TIMES (May 26, 2013),

http://www.nytimes.com/2013/05/27/opinion/americans-and-their-military-drifting-

apart.html?_r=0. 20 See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010);

see also Jesse Lee, The President Signs Repeal of “Don’t Ask Don’t Tell”: “Out of Many, We Are

One ,” THE WHITE HOUSE (Dec. 22, 2010, 12:35 PM), https://www.whitehouse.gov/blog/

2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-one; News Release,

U.S. Dep’t of Def., Def. Dep’t. Rescinds Direct Combat Exclusion Rule; Servs. to Expand

Integration of Women into Previously Restricted Occupations and Units (Jan. 24, 2013),

available at http://archive.defense.gov/releases/release.aspx?releaseid=15784.

21 See, e.g., Eliott C. McLaughlin, Military Chiefs Oppose Removing Commanders from Sexual Assault Probes , CNN (June 5, 2013, 10:31 AM), http://www.cnn.com/2013/06/04/politics/senate-

hearing-military-sexual-assault/. See generally , REPORT OF THE RESPONSE SYSTEMS TO ADULT

SEXUAL ASSAULT CRIMES PANEL 59–63 (2014), available at http://responsesystemspanel.whs.mil/

public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf [hereinafter RSP REPORT]

(outlining the scope of sexual assault in the military and barriers to reporting).22 See Craig Whitlock, Pentagon Investigations Point to Military System that Promotes Abusive

Leaders , WASH. POST (Jan. 28, 2014), https://www.washingtonpost.com/world/national-

security/pentagon-investigations-point-to-military-system-that-promotes-abusive-

leaders/2014/01/28/3e1be1f0-8799-11e3-916e-e01534b1e132_story.html; Thom Shanker, Concern

Grows Over T op Military Officers’ Ethics , N.Y. TIMES (Nov. 12, 2012), http://www.nytimes.com/

2012/11/13/us/petraeuss-resignation-highlights-concern-over-military-officers-ethics.html;

Morgan Hitzig, Military Officers Need More Frequent Ethics Training, Review Finds , CNN (Dec. 7,

2012, 5:50 P.M.), http://security.blogs.cnn.com/2012/12/07/military-officers-need-more-

frequent-ethics-training-review-finds/; Lolita C. Baldor, Sex is Major Reason Military

Commanders are Fired, YAHOO! NEWS (Jan. 21, 2013, 4:52 A.M.), http://news.yahoo.com/sex-

major-reason-military-commanders-fired-123720150.html.

https://www.whitehouse.gov/blog/2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-onehttps://www.whitehouse.gov/blog/2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-onehttps://www.whitehouse.gov/blog/2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-onehttps://www.whitehouse.gov/blog/2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-onehttps://www.whitehouse.gov/blog/2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-one


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high levels of sexual assault within the military, have renewed andstrengthened calls over the last several years to shift prosecutorialdiscretion from commanders to military lawyers.

Most recently, Congress in 2014 and again in 2015 voted againstremoving prosecutorial discretion from commanders, though theycircumscribed this power slightly regarding incidents of alleged sexualassault.23 This symposium Article briefly goes behind this debate totheoretically explore the meaning and necessity of discretion in criminal justice. It focuses on the relationship between the sole vesting of suchdiscretion in layperson (non-lawyer) military commanders, and thedisciplinary system at whose apex stands criminal prosecution. It questionsthe system’s heavy reliance on commanders without sufficientdispositional guidance, particularly given the episodic reports of militaryleadership failure. It also questions the knee-jerk, throw-away-the-baby-with-the-bathwater recommendation of instead vesting such power in

military lawyers, who have not demonstrated any better capacity to utilizewise judgment, and in fact are not groomed for leadership responsibilitiesas commanders are.24

Part I of this Article unpacks the elements of prosecutorial discretion inU.S. criminal law, highlighting its essential character while noting the needfor structured improvement of the decision-making it entails, a needgenerated by cognitive biases and other dysfunctional forces. Part II of thisArticle briefly outlines the organizational and functional milieu withinwhich the military justice system operates: an environment which requiresobedience to orders and adherence to standards unlike that found in thecivilian community. It also briefly sketches how prosecutorial discretion isexercised in the military, focusing on dispositional decisions regardingallegations of misconduct. It notes the military justice system ’s weaknesses,including a lack of transparency, inadequate dispositional guidance,insufficient training, lack of review of dispositional decisions, and a failureto capitalize on the attributes military lawyers bring to the decision-makingprocess regarding the disposition of allegations of misconduct.

This Article concludes by noting recent legislative and policy changesthat begin to cabin that discretion, and recommends further changes. Theseadditional modifications capitalize on the strength of the military justicesystem—its (most often) mature and educated commanders—while

23 See generally infra Part II.C.1.24 See, e.g. , Josh White, General is Sanctioned for 'Unprofessional' Affairs: Air Force's Top Lawyer

Pursued Sex with Subordinates, WASH. POST (Jan. 11, 2005) http://www.washingtonpost.com/

wp-dyn/articles/A64246-2005Jan10.html; Bruce Rolfsen, Colonel Booted, Busted to O-2 ,

AIRFORCE TIMES (Mar. 8, 2010), available at 2010 WLNR 5954129.


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addressing systemic weaknesses by recommending that lawyers be givenan equal vote in prosecutorial decision-making as well as recommendingadditional transparency and educative reform measures. Similar but more

stringent than the quasi-required consensus for sexual assault chargesrecently instituted by congressional changes to the military justice system,military lawyers should be equal partners at the military prosecutorialtable, operating within articulated and trained prosecutorial guidelines,and the resultant joint dispositional decisions should be subject to frequentand independent legal and command review.

I. Prosecutorial Discretion

The prosecutor has more control over life, liberty, and reputation thanany other person in America. His discretion is enormous . . . [i]f the

prosecutor is obliged to choose his cases, it follows that he can choose hisdefendants.25

A. Prosecutorial Discretion: What and Why

Discretion is defined as “the right to choose what should be done in aparticular situation.”26 Prosecutorial discretion broadly refers to the officialpower vested by law in a select person—a lawyer in all American jurisdictions except the military—to choose what should be done regardingallegations of criminal conduct.27 In the United States, prosecutors possesslargely unconstrained and largely unreviewable authority to decidewhether or not to formally charge members of a particular communitywith a crime.28 Not only do prosecutors have the exclusive discretion toprosecute a crime as long as probable cause supports the charge, 29

25

Robert A. Jackson, The Federal Prosecutor , 24 J. AM. JUDICATURE SOC’Y. 18, 18–19 (1940).26 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 647 (1993); see also KENNETH CULP

DAVIS , DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 4 (1969) (noting that “[a] public officer

has discretion whenever the effective limits on his power leave him free to make a choice

among possible courses of action or inaction”).27 See generally Geraldine Szott Moohr, Prosecutorial Power in an Adversarial System: Lessons

from Current White Collar Cases and the Inquisitorial Model, 8 BUFF. CRIM. L. REV. 165, 169–90

(2004) (arguing that the phrase prosecutorial power is more fitting than prosecutorial

discretion, at least in federal white-collar criminal cases).28 See generally WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 707 (5th ed. 2009) (“The

charging decision, involving a determination of whether a person should be formally accused

of a crime and thus subjected to trial . . . is a vitally important stage in the criminal process

with serious implications for the individual involved.”); see also Wayte v. United States, 470

U.S. 598, 606 (1985) (concluding that discretion is required as a matter of separation of powers

and involves factors “particularly ill-suited to judicial review”). 29 See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[S]o long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute, the


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prosecutors also have the discretion as to which specific charges to bring ina situation of overlapping criminal statutes; to grant immunity; to dropcharges; to accept plea bargains, and to recommend sentences. 30 No

wonder American prosecutors, the individuals who make these decisionsin both U.S. federal and state criminal justice systems, have been describedas “the most powerful officials in the criminal justice system.”31

By providing flexibility to pursue criminal charges in any given case,the U.S. state and federal systems grant almost unfettered decision-makingpower to prosecutors to choose whether or not to pursue criminal chargesagainst a particular person in any particular situation.32 Americanprosecutors33 possess the discretion to investigate and prosecute; this ismarkedly different than a duty or obligation to do the same. 34 The latter-type system is demonstrated by Germany and similar civil law legalsystems, in which prosecutors are “obliged by law to file charges wheneverthere is ‘sufficient’ suspicion that the suspect has committed a crime.”35 Not

only do the criminal laws themselves offer a much narrower range ofchoices to prosecutors in civil law jurisdictions, civil law prosecutors arealso bound by the “principle of legality.”36 This principle, which results in a

decision whether or not to prosecute, and what charge to file or bring before a grand jury,

generally rests entirely in his discretion.”). 30 ANGELA J. DAVIS , ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 12

(2007) (citing the powers of the prosecutor); see also H. Richard Uviller, The Neutral Prosecutor:

The Obligation of Dispassion in a Passionate Pursuit, 68 FORDHAM L. REV. 1695, 1695 (2000) (“[N]o

less than the power to charge, to dismiss charges, and to immunize witnesses, the power to

tailor a charge . . . is the essence of the executive function in the prosecution of crime.”); see

also Wayte v. United States, 470 U.S. 598, 607–08 (1985).31

DAVIS , supra note 30, at 5; see also THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE xi(Erik Luna & Marianne L. Wade, eds., Oxford Press 2012) (“[T]he American Prosecutor rules

the criminal justice system.”). 32 Cf . Stephanos Bibas, The Need for Prosecutorial Discretion , 19 TEMP. POL. & CIV. RTS. L. REV.

369, 370 (2010) (highlighting the ubiquitous nature of prosecutorial discretion in the United

States, while noting that a few states such as West Virginia purport to mandate prosecution).33 Cf . WEAVER ET AL., CRIMINAL PROCEDURE: CASES , PROBLEMS , AND EXERCISES ,

INVESTIGATIVE PROCESSES 9 (5th ed. 2013) (noting that police in some states can initiate a

misdemeanor prosecution by filing a complaint in court, whereas felony prosecutions are only

initiated by action by prosecutors).34 See generally id. , at 834 (“because prosecutors possess discretion (rather than an obligation

or duty) to investigate and prosecute, they are not legally bound to do either”). 35 JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PROSECUTING CRIME

826 (5th ed. 2013) (citing Thomas Weigand, Germany , in CRIMINAL PROCEDURE: A WORLDWIDE

VIEW 205 (Craig Bradley, ed. 1999) (further defining sufficient suspicion as the “likelihood thatthe suspect will be convicted after trial”)).

36 Ronald F. Wright & Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors , 67


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“tradition of mandatory prosecution,”37 provides that “every crime andevery penalty shall be embodied in a statute enacted by the legislature.”38

Why is the American prosecutor given so much discretion, and hence

power? Prosecutorial power is inseparable from the criminal justice systemit is part of, with criminal law providing the menu of options, in the formof thousands of crimes, from which the prosecutor can choose to, or not to,utilize against someone. Criminal law is generally referred to as anexpression of society’s collective moral condemnation of particularconduct;39 criminal law stigmatizes behavior in order to punish it, withpunishment providing deterrence, retribution, rehabilitation, and/orincapacitation.40 Hence the community, that is, society, for whom theprosecutor acts, has a vested interest in how the prosecutor chooses toexercise his or her discretion.41 By exercising the flexibility that is theessence of discretion—flexibility inherent in the prosecutor’s ability tochoose among a menu of crimes and the choice to not open the menu at

all—the prosecutor theoretically incorporates the community’s changingopinions regarding the harm associated with particular behavior.42

WASH. & LEE L. REV. 1587, 1595 (2010); see also THE PROSECUTOR IN TRANSNATIONAL

PERSPECTIVE , supra note 31, at xiii (highlighting early 20th Century debates regarding whether

the United States should incorporate the legality principle and hence restrict prosecutorial

discretion).37 Wright & Miller, supra note 36, at 1595. But see Shawn Boyne, Is the Journey from the In-Box

to the Out-Box a Straight Line? The Drive for Efficiency and the Prosecution of Low-Level Criminality

in Germany , in THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE , supra note 31, at 37–38

(noting a recent expansion in prosecutorial discretion in Germany).38 Wright & Miller, supra note 36, at 1595 n.36 (quoting JOHN HENRY MERRYMAN & ROGELIO

PEREZ-PERDOMO , THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEM OF

EUROPE AND LATIN AMERICA 126 (3d. ed. 2007)).39 Henry M. Hart, Jr., The Aims of the Criminal Law , 23 LAW & CONTEMP. PROBS. 401, 404

(1958) (“What distinguishes a criminal from a civil sanction and all that distinguishes it . . . is

the judgment of community condemnation which accompanies and justifies its imposition.”);

see also Anthony V. Alfieri, Community Prosecutors , 90 CALIF. L. REV. 1465, 1470 (2002)

(“lawbreaking is a breach of the community covenants of obligation and obedience . . .

[c]ulpability is a collective determination of communal breach . . . desert is a collective

assessment of consequence and worth”). 40 See Alfieri, supra note 39, at 1471 (describing how the penological purposes of criminal

law are realized through the prosecutor’s role in administering appropriate punishment); see

also Ernest van den Haag, Punishment: Desert and Crime Control, 85 MICH. L. REV. 1250, 1250–53

(1987).41 See LAFAVE ET AL., supra note 28 , at 707 (characterizing charging decisions as “of obvious

importance to the community”).

42 Id.; see also United States v. Goodwin, 457 U.S. 368, 382 (1982) (concluding that “ [a]

prosecutor should remain free before trial to exercise the broad discretion entrusted to him to

determine the extent of the societal interest in prosecution”); cf. H. Richard Uviller, supra note


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Prosecutorial discretion hence could be seen as a mechanism throughwhich society’s evolving or devolving opinions are inputted into thecriminal justice system.43

Yet this explanation for prosecutorial discretion is not satisfying,particularly because society’s opinions as to what to punish are moredirectly—and more transparently—reflected in the formation of criminallaw by legislative bodies.44 Other reasons for prosecutorial discretion areroutinely cited; for example, courts emphasize that the constitutionalseparation of powers framework of governance explains their deference toprosecutorial decisions, however, this reason does not fully clarify whyAmerican prosecutors are free to charge some individuals where sufficientevidence exists and not others.45 Additionally, the lack of resources toprosecute all crime is frequently cited as a primary reason supporting theAmerican prosecutor’s discretionary power,46 coupled with the vast breadth of often vague criminal statutes that, by their very nature, seem to

shift the criminalization of conduct onto prosecutors as they decide howand what to charge.47

The foundational explanation for the vast discretion vested inAmerican prosecutors is both inclusive of these reasons as well as deeper.Prosecutorial discretion, particularly in the charging decision, is aboutindividualized justice: “without such discretion, there would be many

30 , at 1695–96 (characterizing the “just disposition of a criminal charge” as “in part a

calibration of the level of contextual social outrage").43 See generally U.S. DEP’T OF JUSTICE , U. S. ATT’YS’ MANUAL § 9-27.001 (2014) [hereinafter

USAM 2014] (“The manner in which Federal prosecutors exercise their decision-making

authority has far-reaching implications, both in terms of justice and effectiveness in law

enforcement and in terms of the consequences for individual citizens. A determination toprosecute represents a policy judgment that the fundamental interests of society require the

application of the criminal laws to a particular set of circumstances . . . .”). 44 Bibas, supra note 32 , at 371 (claiming that “[d]emocratically-elected legislatures can better

reflect the public's sense of justice, sorting the most blameworthy and harmful acts from those

that do not deserve punishment.”). 45 See United States v. Armstrong, 517 U.S. 456, 464 (1996) (explaining that prosecutors have

wide discretion to dispose of criminal charges “because they are designated by statute as the

President's delegates to help him discharge his constitutional responsibility to ‘take Care that

the Laws be faithfully executed’”). See generally Wright & Miller, supra note 36, at 1607

(attributing the “immense deference to executive discretion in prosecutorial decision-making”

shown by courts to the “constitutional doctrine of separation of powers”). 46 See, e.g. , Michael Edmund O'Neill, When Prosecutors Don't: Trends in Federal Prosecutorial

Declinations , 79 NOTRE DAME L. REV. 221, 222 (2003) (noting that “resources, even at the

national level, are scarce”); see also DAVIS , supra note 30 , at 13 (“There are not enoughresources in any local criminal justice system to prosecute every alleged offense.”).

47 See generally THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE , supra note 31, at 1.


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more unjust decisions at every stage of the criminal process.”48 Discretionto tailor a response to a particular situation, versus an automatic, one-size-fits-all approach, is central to the American idea of fairness. 49 In the words

of one scholar, “[j]ustice requires not only rules but also fine-grained moralevaluations and distinctions.”50 Such evaluations and distinctions arenecessary because it is almost axiomatic that criminal laws lack nuance;they “cannot capture every subtlety, which is why various actors needdiscretion to tailor their application of the law.”51 Whereas criminal lawoften lacks nuance, human behavior is typically the exact opposite. Hencediscretion is needed to match the criminal rules with the situation: “[f]ormany circumstances the mechanical application of a rule means injustice;what is needed is individualized justice, that is, justice which to theappropriate extent is tailored to the needs of the individual case.”52

Hence the broad concept of American prosecutorial discretion rests onthe ideals of fairness and justice,53 and is made necessary by the complexity

of applying broad criminal laws to human conduct. Since “no criminalcode can spell out crimes and punishments to fit every conceivablescenario,” prosecutors are given “leeway to implement legislativecommands.”54 Furthermore, in the words of one scholar, broadprosecutorial discretion aligns with “the popular moral intuition that wegenerally want to pursue justice tempered by mercy. Individualized justiceand mercy both require a human being, not a robot or guidelines manual,to review cases.”55 Prosecutorial charging decisions are frequentlychallenging ones that involve numerous considerations; because of thiscomplexity it “is an exercise of discretion that . . . cannot be reduced to asimple formula.”56 The Supreme Court has articulated exemplary types of

48 DAVIS , supra note 30, at 6 (noting that police officers routinely exercise discretion when

choosing whether or not to arrest someone or to provide a warning, etc., though such

discretion has allowed huge amounts of unjust racial disparities).49 See generally Bibas, supra note 32, at 370 (“[R]ules cannot capture every subtlety, which is

why various actors need discretion to tailor their application of the law.”).50 Id. 51 Id.52 DAVIS , supra note 26, at 19 (tracing the need for a balance between discretion and rules in

the evolution of the law from the Romans through today).53 While the ABA Model Rules of Professional Conduct urge prosecutors to be a “minister

of justice,” it does not define justice. See MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1 (2013).54 Bibas, supra note 32, at 372.55 Id.

56 Bennett L. Gershman, Prosecutorial Decisionmaking and Discretion in the Charging Function ,

62 HASTINGS L.J. 1259, 1260 (2011); see also DAVIS , supra note 30, at 6 (noting that prosecutors

need to “take into account individualized facts, circumstances, and characteristics of each


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factors that go into the decision to prosecute, which make such a decision“ill-suited to judicial review.”57 These factors include “the strength of thecase, the prosecution’s general deterrence value, the Government’s

enforcement priorities, and the case’s relationship to the Government’soverall enforcement plan.”58 Additionally, noted scholars have describedthe prosecutorial decision-making process as one which involves thesepotentially difficult determinations:

(1) whether there is sufficient evidence to support aprosecution; (2) if so, whether there are nonethelessreasons for not subjecting the defendant to the criminalprocess; (3) if so, whether nonprosecution should beconditioned upon the defendant’s participation in adiversion program; and (4) if prosecution is to beundertaken, with what offense or offenses the defendantshould be charged.59

Yet despite the sound reasons supporting a need for prosecutorialdiscretion, its largely unchecked exercise in the charging and plea bargaining arena have led to disturbing and decidedly unjust results;results that have long led to calls for improvement in this arena.60 It isimportant to note that these results are not all, or even primarily, due tointentional abuse of discretion:

Perhaps prosecutors sometimes fail to make decisionsthat rationally further justice, not because they fail tovalue justice, but because they are, in fact, irrational.They are irrational because they are human, and allhuman decision makers share a common set ofinformation-processing tendencies that depart from

perfect rationality.61

The cognitive sciences are revealing to a greater extent each year howmuch of a captive audience decision makers—all humans—are to

case” to produce just results).57 Wayte v. United States, 470 U.S. 598, 607 (1985).58 Id.59 LAFAVE ET. AL., supra note 28, at 707.60 See generally DAVIS , supra note 30, at 4–5 (describing the racial inequities inherent in the

current American system of broadly unchecked prosecutorial discretion); see also DAVIS , supra

note 26, at 5 n.4 (explaining that while discretion is necessary, too much exists, which leads to

abuses).61 Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science ,

47 WM. & MARY L. REV. 1587, 1590 (2006).


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subconscious processes.62 Hence, in addition to the intentional abuse ofdiscretion that exists within the criminal justice system,63 changes need to be made to counteract the hidden but real dynamics of cognitive biases

which can pervert the exercise of discretion.64

B. Checks and Balances?

In their effort to give prosecutors the freedom and independence toenforce the law, the judicial and legislative branches of government have

failed to perform the kind of checks and balances essential to a fair andeffective democracy.65

The Supreme Court itself has noted that prosecutorial discretion is notcompletely unfettered;66 yet the checks on prosecutorial power that do existonly “come after the prosecutor decides to pursue a target.”67 There areessentially zero checks or balances, and hence little accountability, for thecrimes that a prosecutor chooses not to charge and for the decision-making

process that results in either a criminal prosecution or not.68

A cursoryreview of the checks that do exist, following the decision to prosecute,reveals structural weakness, particularly given the prevalence of plea- bargaining and the harsh sentencing laws which lend even greater importto the particular charges a prosecutor chooses to levy against someone. 69 To begin with, while the law in the form of statutes and case precedents itselfis supposed to be a check—as only specific criminal laws, which are nowalmost all codified in the United States,70 can serve as a basis for

62 See id.63 See generally DAVIS , supra note 30, at 4–5 (highlighting the racial abuses of discretion

within the criminal justice system).64 See generally Burke, supra note 61 (noting certain methods that can help prosecutors

overcome prosecutorial misconduct).65 DAVIS , supra note 30, at 15.66 Wayte v. United States, 470 U.S. 598, 608 (1985).67 O’Neill, supra note 46, at 223 (emphasis added) (noting that after the decision to

prosecute has been made, “judicial supervision, grand and petit juries, and public scrutiny

come into play”). Additionally, while over half the states require prosecutors to “confer” with

the victim regarding their views, such victim input is not seen to limit the prosecutor’s

discretion. See LAFAVE ET AL., supra note 28, at 708.68 See generally Wright & Miller, supra note 36, at 1595 (citing an accountability deficit where

prosecutors make decisions at will, with very little explanation of their choices).69 See generally William T. Pizzi, A Perfect Storm: Prosecutorial Discretion in the United States

189, in THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE , supra note 31, at 194–95

(highlighting the increase in prosecutorial power as a direct result of mandatory sentencingstatutes).

70 See THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE , supra note 31, at 180 (noting that


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prosecution—many criminal laws are intentionally vague, and almost nonecompel prosecution.71

One check on prosecutorial charging discretion involves the sufficiency

of evidence: criminal charges cannot be lodged against individuals withoutprobable cause to support the charges.72 This is a decidedly low standard,73 and one that has never been specifically defined by the U.S. Supreme Courtin the context of charging.74 Other checks on prosecutorial power includethe role of independent parties to judge the evidence against this standard:prosecutors either must demonstrate to a grand jury that probable causeexists to indict an individual, or they must demonstrate to a judge in apreliminary hearing that such probable cause exists to forward thecharges.75 Yet scholars have long noted the farcical nature of grand juryproceedings, which typically serve to rubber-stamp the U.S. attorney ’scharging decisions, and the deference shown by judicial officers regardingprosecutorial discretion in general.76

Judicially, the courts have been loath to review prosecutorial chargingdecisions due to the above-mentioned separation of powers concern.However, the constitutional protections of due process and equal

criminal laws were developed through cases, but are now codified in statutes).71 See Bibas, supra note 32 , at 369 (“Legislatures . . . have strong political incentive

to pass overbroad and overlapping criminal statutes . . . these broad and overlapping criminal

laws let police and prosecutors decide who actually deserves to be charged and with what

crimes.”). 72 See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also AM. BAR ASS’N , CRIMINAL

JUSTICE FOR THE PROSECUTION FUNCTION 3-4.3 (a) (4th ed. 2015), available at

http://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthE

dition.html (“A prosecutor should seek or file criminal charges only if the prosecutorreasonably believes that the charges are supported by probable cause, that admissible

evidence will be sufficient to support conviction beyond a reasonable doubt, and that the

decision to charge is in the interests of justice.”).73 See Gershman, supra note 56 , at 1267 (noting that “a probable cause standard is an

extremely low threshold for bringing charges”); DAVIS , supra note 30, at 26 (“probable cause

may be proven if it is more probable than not that the defendant committed the crime . . .

grand jurors rarely act independently of the prosecutor.”).74 See LAFAVE ET AL., supra note 28, at 708.75 Indictments by a grand jury are required by the 5th Amendment in federal criminal

courts unless the defendant has waived this right; the states vary but many utilize preliminary

hearings at which a defendant can present evidence. See generally id. 76 See generally Uviller, supra note 30, at 1698 (characterizing grand juries as relics that

produce pro forma results); see also Wright & Miller, supra note 36, at 1607 (“[J]udges have

shown little interest in regulating any aspect of prosecutorial decision-making. Courts in the

United States operate within a tradition of immense deference to executive discretion in

prosecutorial decision-making.”).


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protection mitigate some arbitrariness in prosecutorial decisions, withvindictive and selective prosecution prohibited.77 Regarding selectiveprosecution, the Supreme Court has found that the prosecutorial decision

may not turn on “an unjustifiable standard such as race, religion, or otherarbitrary classification,” though the violation of this rule is quite difficult toprove as it requires the defendant to show a discriminatory effectmotivated by a discriminatory purpose.78 Additionally, charging decisionsare presumed to be made in good faith, but a “presumption ofvindictiveness will arise where a defendant is re-indicted, particularlywhen a prosecutor increases the number or severity of charges after thedefendant has appealed his or her conviction.”79

Separately, while most state prosecutors are elected, this electoralaccountability does not translate into accountability for discretionaryprosecutorial decisions because such decisions are not transparent. Mostprosecutorial decisions, in particular the decision to prosecute or not, and

for what crime, are shrouded in secret.80

The lack of transparency to almosteveryone—except perhaps to fellow prosecutors or a supervisor, if one is a junior district attorney or assistant U.S. attorney who has a prosecutorialsupervisor—is truly remarkable.81 Despite a supposed accountability to thepeople, even elected prosecutors (which most state prosecutors are),82 arenot accountable for their decisions because most of their decisions are notknown; while there is of course a public record regarding who isprosecuted, there is little public data on who is not prosecuted, and whynot. Similarly, there is no public data regarding why particular charges are

77 See generally Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77

WASH. U. L. Q. 713, 734–53 (1999) (analyzing vindictive and selective prosecution doctrines).78

See United States v. Armstrong, 517 U.S. 456, 464–65 (1996).79 See U.S. CONST. amend. V; O’Neill, supra note 46, at 248 (quoting Chris Zimmerman,

Prosecutorial Discretion, 89 GEO. L.J. 1229, 1238–39 (2001)). The highest military appellate court

has also recognized the impropriety of vindictive prosecution, which it defines as the decision

to prosecute in retaliation for the exercise of certain constitutional rights. See generally United

States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987) (“As with a charge of selective prosecution, an

accused must show more than a mere possibility of vindictiveness; he must show

discriminatory intent.”). Additionally, the constitutional bar against double jeopardy also

works to prohibit multiplicious charging.80 See generally Bibas, supra note 32 , at 373 (“What is troubling about prosecutorial

discretion is not that it places discretionary power in the hands of individuals. What is

troubling is that it is very often ad hoc, hidden, and insulated from public scrutiny and

criticism.”).81 See DAVIS , supra note 30 , at 5 (“Prosecutors make the most important of these decisions

behind closed doors and answer only to other prosecutors.”). 82 See id. at 10–11 (noting that less than five states and the District of Columbia utilize

appointed prosecutors).


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filed in any given case versus other, equally valid ones, nor why a plea bargain is struck in one case and not in another.83 Because prosecutorialdecisions are not transparent, “[m]any discretionary decisions require no

reasoned justification” and “risk being inconsistent, biased, and tainted byagency costs that pull them far from the public’s shared moral sense.”84

C. Attempts at Guiding Discretion

As noted above, the most important prosecutorial decisions inAmerica, particularly whether to charge or not, and if so what charges tolodge, are made in secret, with immunity,85 and without formal checks.86 The potential for abuse by American prosecutors in this particular area of“government by men instead of law”87 has long been noted. For example,President Hoover’s Wickersham Commission in the 1920s criticized thelack of checks on American prosecutors, highlighting that electoralaccountability meant little.88 One respected scholar notes that the shift from

an early colonial system of victims as private prosecutors, to publicprosecutors appointed and tightly directed by governors, and finally topopularly-elected public prosecutors, has been an evolution that has

83 Id. at 11.84 Bibas, supra note 32, at 373.85 American prosecutors enjoy “absolute immunity” from civil suit when performing their

prosecutorial duties. See , e.g. , Van de Kamp v. Goldstein, 555 U.S. 335, 340 (2009) (citing

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) “[I]t has been thought in the end better . . .

to leave unredressed the wrongs done by dishonest officers than to subject those who try to

do their duty to the constant dread of retaliation.”); see also Imbler v. Pachtman , 424 U.S. 409,

427 (1976) (concluding that “the considerations outlined . . . dictate the same absoluteimmunity . . . that the prosecutor enjoys at common law”). See generally Karen McDonald

Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing a Compromise Approach

to Claims of Prosecutorial Misconduct , 48 GONZ. L. REV. 219, 223 (2013) (noting the “moral

hazards” which accompany such immunity). 86 See generally LAFAVE ET AL., supra note 28 , at 715 (noting that “[t]he prosecution function

has traditionally been decentralized, so that state attorneys-general exercise no effective

control over local prosecutors”). 87 See generally DAVIS , supra note 26, at 17 (explaining that Aristotle’s “government of laws

and not men” did not imply that governing can be accomplished without the exercise of

discretion; hence Davis maintains that “[e]very government has always been a government of laws

and of men”) (emphasis in original).88 See Davis, supra note 30, at 12; George W. Wickersham, The Program of the Commission on

Law Observance and Enforcement , 16 A.B.A. J. 654, 660 (1930); see generally Ronald F. Wright, The

Wickersham Commission and Local Control of Criminal Prosecution , 96 MARQ. L. REV. 1199, 1203

(2013) (noting the Wickersham Commission’s emphasis on political corruption of

prosecutorial decisions in jurisdictions with locally-elected prosecutors).


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“reinforced [the prosecutor’s] power, independence, and discretion.”89 Accountability via the ballot box remains chimerical in such a system because “the actions and decisions of the prosecutor [are] not generally a

matter of public record.”90

One response to this concern regarding prosecutorial discretion was

the promulgation of the American Bar Association’s hortatory91 criminal justice standards in the late 1960s, which continue to include guidelinesspecifically for prosecutors, designed “to be used as a guide to professionalconduct and performance.”92 While the principles themselves are non- binding, they remain influential and have been adopted by many states.93 They are also frequently cited by the Supreme Court, appellate and statecourts, and law review articles when dealing with prosecutorial conduct.94

The ABA Prosecution Function Standards (“Standards”) broadlyoutline the prosecutor’s function as one of “an administrator of justice, anadvocate, and an officer of the court” who “must exercise sound discretion

in the performance of his or her functions.”95

They also outline specific

89 See DAVIS , supra note 30, at 11. “Prosecutors . . . have escaped the kind of scrutiny and

accountability that we demand of public officials in a democratic society.” Id. at 15.90 See id. at 11; LAFAVE ET AL., supra note 28, at 715 (“The public can hardly assess

prosecution policies that are kept secret.”). 91 See generally Ellen S. Podgor, The Role of the Prosecution and Defense Function Standards:

Stagnant or Progressive? , 62 HASTINGS L.J. 1159, 1159 (2011) (describing the advisory role of the

ABA Criminal Justice Standards: The Prosecution and Defense Function Standards).92 See ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE

FUNCTION § 3-1.1 (3d ed. 1993) [hereinafter ABA STANDARDS].93 See LISA G. LERMAN & PHILIP G. SCHRAG , ETHICAL PROBLEMS IN THE PRACTICE OF LAW 6,

50 (3d ed. 2012) (citing the ABA Prosecution Function Standards’ incorporation by the

majority of states and describing their influential role). See generally Work Revising CriminalStandards Flows From Life in Criminal Law , UC HASTINGS (Dec. 13, 2012),

http://www.uchastings.edu/news/articles/2012/12/criminal-standards-revised.php (describing

the Standards as having been cited over 1000 times in the lowers courts and over 100 times by

the Supreme Court).94 See Brief for the American Bar Association as Amicus Curiae Supporting Petitioner at 4,

Smith v. Cain, 132 S.Ct. 627 (2012) (No. 10-8145) (discussing the Standards’ weighty import

while tracing their history; “[t]he ABA [Prosecution Function] Standards represent a collection

of ‘best practices’ based on the consensus views of a broad array of professionals involved in

the criminal justice system”); Podgor, supra note 91, at 1168–69 (discussing extensive usage of

the ABA Prosecution Function Standards by federal courts and highlighting 2011 legal search

engine search results for the ABA Prosecution Function Standards); Martin Marcus, The

Making of the ABA Criminal Justice Standards: Forty Years of Excellence , 23 CRIM. JUST. 10, 11

(2009), available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_

section_newsletter/crimjust_standards_marcus.authcheckdam.pdf (listing the number of casesciting the standards over 40 years as almost 1000).

95 ABA STANDARDS , supra note 92, at § 3-1.2.

http://www.uchastings.edu/news/articles/2012/12/criminal-standards-revised.phphttp://www.uchastings.edu/news/articles/2012/12/criminal-standards-revised.php


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factors to consider regarding the decision to charge an individual with acriminal offense.96 In addition to requiring that charges be supported byprobable cause, the Standards require that a prosecutor possess sufficient

admissible evidence to support a conviction prior to charging.97

TheStandards also explicitly provide that, “[t]he prosecutor is not obliged topresent all charges which the evidence might support,” emphasizing thatin some circumstances prosecutors should decline to prosecute.98 TheStandards further list exemplary types of factors prosecutors shouldconsider in making appropriate charging decisions:

(i) the prosecutor’s reasonable doubt that the accused is in factguilty;

(ii) the extent of the harm caused by the offense;

(iii) the disproportion of the authorized punishment in relation tothe particular offense or the offender;

(iv) possible improper motives of a complainant;

(v) reluctance of the victim to testify;

(vi) cooperation of the accused in the apprehension or convictionof others; and

(vii) availability and likelihood of prosecution by another jurisdiction.

(viii) A prosecutor should not be compelled by his or hersupervisor to prosecute a case in which he or she has a reasonabledoubt about the guilt of the accused.

(viv) In making the decision to prosecute, the prosecutor shouldgive no weight to the personal or political advantages ordisadvantages which might be involved or to a desire to enhance

his or her record of convictions.(x) In cases which involve a serious threat to the community, theprosecutor should not be deterred from prosecution by the factthat in the jurisdiction juries have tended to acquit personsaccused of the particular kind of criminal act in question.

(xi) The prosecutor should not bring or seek charges greater innumber of degree than can reasonably be supported withevidence at trial or than are necessary to fairly reflect the gravityof the offense.99

96 See id. at § 3-3.9(a).

97 Id. 98 Id. at § 3-3.9(b).99 Id.


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Additionally, the Standards emphasize the lawyer as the prosecutor,without explaining why.100 They recommend that the prosecution function be vested in one public official “who is a lawyer subject to the standards of

professional conduct and discipline.”101

However, while these standardsare crafted to assure fairness and justice, unfortunately “[n]o prosecutor isrequired to follow or even consider” these aspirational standards.102

Prosecutors are subject to mandatory state rules of professional conductfor lawyers; these state ethical rules are primarily based on the AmericanBar Association’s Model Rules of Professional Conduct (ABA ModelRules), which include a rule specifically governing prosecutors. 103 ABAModel Rule 3.8 outlines what it calls the “special responsibilities” of aprosecutor, and includes: a prohibition against prosecuting a charge forwhich there is no probable cause; a provision regarding prejudicialextrajudicial statements; exculpatory and mitigating evidence disclosurerequirements;104 and remedial measures regarding evidence of wrongful

convictions.105

The non-binding comments explain the need for theseprosecutor-specific rules: “[a] prosecutor has the responsibility of aminister of justice and not simply that of an advocate.”106 This prosecutor-specific rule of 3.8 supplements rather than displaces the other ABA ModelRules; that is, all the rules, such as those requiring lawyers to be“competent, prompt and diligent,” and those providing guidance on howto resolve conflicts of interest, also apply to lawyers in their prosecutorialrole.107

Hence the state-mandated, binding ethical rules specifically cabiningprosecutorial discretion are quite weak, essentially limited to probablecause for charging and an undefined mandate to do justice. While the ABAStandards are more comprehensive, they are purely aspirational in natureand rather general; they therefore urge individual offices to develop

100 See id. at § 3-1.2(a).101 ABA STANDARDS , supra note 92, at § 3-2.1.102 DAVIS , supra note 30 , at 15. “Without enforceable laws or policies to guide that

discretion, all too often it is exercised haphazardly at worst and arbitrarily at best, resulting in

inequitable treatment of both victims and defendants.” Id. at 13.103 MODEL RULES OF PROF’L CONDUCT (2013); see also LERMAN & SCHRAG , supra note 93, at 25

(discussing the ABA Model Rules as states’ template for state rules of attorney professional

responsibility).104 Most prosecutors do not treat disclosure requirements as trumping the more limited

rules of disclosure mandated by the U.S. Supreme Court in Brady v. Maryland. See generally

Brady v. Maryland, 373 U.S. 83 (1963).

105 MODEL RULES OF PROF’L CONDUCT r. 3.8 (2015).106 Id. at r. 3.8 cmt. 1 (2015).107 Id. at pmbl. ¶¶ 4, 9 (2015).


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internal yet public guidelines to limit and structure prosecutorialdiscretion:

(a) Each prosecutor’s office should develop a statement of (i)

general policies to guide the exercise of prosecutorial discretionand (ii) procedures of the office. The objectives of these policies asto discretion and procedures should be to achieve a fair, efficient,and effective enforcement of the criminal law.

(b) In the interest of continuity and clarity, such statement ofpolicies and procedures should be maintained in an officehandbook. This handbook should be available to the public,except for subject matters declared “confidential,” when it isreasonably believed that public access to their contents wouldadversely affect the prosecution function.108

Following this advice, the Department of Justice (“DOJ”) providesadditional, and quite robust, guidelines109 for its prosecutors,110 found inthe United States Attorneys’ Manual 9-27.000, entitled “Principles of

Federal Prosecution” (“DOJ Manual”).111 This manual’s stated purpose is to“promote the reasoned exercise of prosecutorial discretion” among federalprosecutors.112 Its rules and policies are designed to help guarantee “thefair and effective exercise of prosecutorial responsibility by attorneys forthe government,” as well as to “promot[e] confidence on the part of thepublic and individual defendants that important prosecutorial decisionswill be made rationally and objectively on the merits of each case.”113 Itsprinciples are quite detailed in nature, particularly in comparison with theABA Standards as well as Model Rules. For example, the DOJ Manualprovides much greater explication regarding appropriate factors toconsider when deciding not to prosecute; instead of simply listing “natureand seriousness of offense” as an appropriate factor, 9-27.230’s comment

section details different ways in which community impact can actually beevaluated.114 This habit of detailed explanation is repeated throughout the

108 ABA STANDARDS , supra note 92, at § 3-2.5.109 Ellen S. Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions , 68

FORDHAM L. REV. 1512, 1512 (2000) (“[t]he only real voice in the federal system that limits

prosecutorial discretion can be found in the guidelines of the Department of Justice”).110 See DEP’T OF JUSTICE , U.S. ATT’YS’ MANUAL § 9-27.110 cmt. B (2010) [hereinafter USAM

2010] (“[I]t is desirable, in the interest of the fair and effective administration of justice in the

Federal system, that all Federal prosecutors be guided by a general statement of principles

that summarizes appropriate considerations to be weighed.”). 111 Id. at § 9-27.000.

112 Id. at § 9-27.110.113 Id. at § 9-27.001.114 See id. at § 9-27.230 cmt. B(2).


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DOJ Principles, such as in 9-27.300’s twelve-paragraph treatment ofcharging the most serious offense.115

Yet, while the need for such established standards has long been noted

in order for “the prosecutor’s charging discretion [to] become morestructured and thus more rational” by providing better training for newprosecutors as well as by providing standards for internal and externalreview,116 they are not always successful.117 Hence, other recommendationshave also been strongly urged in order to better channel prosecutorialdiscretion across the American criminal justice landscape, both to relievethe intentional misconduct inherent in the exercise of such currently-unreviewable plenary power, and more importantly, to address theunintentional inappropriate decisions that stem from cognitive biases andother subconscious dynamics that influence human decision making.118 These include measures resulting in greater transparency of prosecutorialdecisions; such transparency can be obtained through procedural

mechanisms such as requiring decisions not to prosecute be annotated by adocumented statement of the reasons.119 Another related suggestion toimprove the exercise of prosecutorial discretion is through enhancededucation.120 Improving prosecutorial discretion “requires [ ] prosecutorsunderstand the ramifications and appearance of inequity resulting frominconsistency and abuse in the discretionary decision-making process.”121 Measures should be implemented to educate decision-makers “to considerconscious and unconscious biases in charging decisions.”122 Finally,suggestions have long been made to institute “close administrative review” such as the bureaucratic reviews integral to the German prosecutorial

115 See id. at § 9-27.300.116 LAFAVE ET AL., supra note 28, at 714.117 See Podgor, supra note 109 , at 1531 (noting that “[i]nternal guidelines have been

disregarded with no legal enforcement mechanism to monitor the violations”). See generally

Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors , 36 HOFSTRA L.

REV. 275 (2007) (critiquing the efficacy of legal ethical rules and citing their failure as a

restraint on prosecutorial misconduct).118 See Podgor, supra note 109 , at 1514 (“Consideration needs to be given to how conscious

and unconscious bias may affect discretionary decisions.”). See generally Burke, supra note 61,

at 1602–13 (assessing how cognitive biases affect prosecutorial discretion).119 See LAFAVE ET AL., supra note 28, at 714.120 See Podgor, supra note 109 , at 1513 (arguing education is “a means to providing a more

ethical and professional methodology in helping prosecutors navigate the discretionary

decision-making process”). 121 Id. at 1531.122 Id. at 1533.


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system.123

II. Military Command & Military Discipline

A. Context

While a “monocular focus on an individual actor such as theprosecutor . . . risks losing the broader systemic context, ”124 this Articlehopes to avoid such a distortion by briefly outlining the milieu in whichmilitary commanders exercise prosecutorial discretion. The scene musttherefore be appropriately set in which the criticality of the maintenance oftight control over troops via disciplinary measures—or at least theassumption of such criticality—has been, and for the most part remains,the guiding dynamic behind the military justice system: “[t]o steel soldiersfor the tightly packed formations that marched terrifyingly close to theiropponents to achieve effective musket fire, officers resorted to relentlessdrill and brutal discipline.”125 The terrifying environment of battlefield longpredates musket fire, and hence the need to control individuals by coerciveorders, backed up by threat and imposition of punishment for failure toobey said commands, also predates technological advancements inweaponry such as the musket.126 While U.S. service-members today nolonger maneuver in the same massive phalanx infantry formations firstutilized by the Greeks and then Alexander the Great of Macedonia in thefourth century B.C.E., those ancient battlefield operations’ successful use ofgroups of men organized through formal discipline influences modernmilitary structure and methodology.127

This need for discipline recognized by Alexander the Great runsthroughout military history; it is a corollary to one of the principles of warthat has a cross-cultural lineage spanning thousands of years: the principleof unity of command.128 This principle, recognized by Sun Tzu in ancientChina as well as by today’s modern Army, directs that: “[f]or every

123 See, e.g. , LAFAVE ET AL., supra note 28, at 715.124 THE PROSECUTOR IN TRANSITIONAL PERSPECTIVE , supra note 31, at 178.125 Colonel Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the

U.S. Military , 29 WAKE FOREST L. REV. 341, 347 (1994) [hereinafter The Junta].126 See generally Victor Hansen, Changes in Modern Military Codes and the Role of the Military

Commander: What Should the United States Learn from this Revolution? , 16 TUL. J. INT’L & COMP.

L. 419, 423 (2008) (“Military operations, particularly in war, often require immediate and

unquestioned obedience to orders and commands.”). 127 See generally AMERICAN MILITARY HISTORY VOL , I, THE UNITED STATES ARMY AND THE

FORGING OF A NATION , 1775–1917, at 19 (Richard W. Stewart, ed., 2005) (describing ancientwarfare’s use of organized, disciplined forces).

128 Id. at 8.


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objective, ensure unity of effort under one responsible commander.”129 Acurrent Army field manual further defines this core principle of war withan emphasis on its need for authority:

4-44. Developing the full combat power of a force requires unityof command. Unity of command means that a single commanderdirects and coordinates the actions of all forces toward a commonobjective. Cooperation may produce coordination, but giving asingle commander the required authority unifies action.130

This required authority stands in contradistinction to coordinationthrough cooperation: command authority requires respect for suchauthority, and this translates to the need for “means to impose swift andsummary punishment” to ensure control through obedience to orders.131 That is, since the days of the Greeks and Romans, the power of commandhas been synonymous with the power to discipline forces under one ’scommand132—an authority inextricably linked to the power to order, and

be obeyed, in pursuit of military objectives.133

Military history supports the unity of command principle ’s criticality;

it is replete with examples that emphasize that superior “disciplinedforces” win battles; such forces are considered disciplined and hencesuccessful because they do what they are told.134 Soldiers follow orders because their commanders, who, per the unity of command principle, mustpossess authority over other soldiers, and utilize disciplinary measures.Discipline, long considered “the soul of an army,”135 is roughly the practice

129 Id.130 HEADQUARTERS DEPARTMENT OF THE ARMY , OPERATIONS FIELD MANUAL 3-0, at 4-14

(2001). 131 See Hansen, supra note 126. 132 See generally WILLIAM WINTHROP , MILITARY LAW AND PRECEDENTS 17 (2d ed. 1920)

(describing how early Roman and Germanic military commanders administrated discipline

through means such as death, whipping, maiming, etc.).133 See David A. Schlueter, The Court-Martial: An Historical Survey , 87 MIL. L. REV. 129, 131

(1980).134 See AMERICAN MILITARY HISTORY VOL. I, THE UNITED STATES ARMY AND THE FORGING OF

A NATION , 1775–1917, supra note 127 , at 21 (describing how in the Middle Ages “formations of

disciplined infantry using longbow . . . reasserted their superiority on the battlefield”); id. at

23 (attributing the greatness of Frederick the Great’s Prussian army to “near clock-like

precision [achieved] by brutal discipline and unquestioning obedience throughout” the army);

id. at 21 (describing how “European armies transformed themselves into highly disciplined

and powerful military machines”).

135 Letter from George Washington to Virginia Regiment Officers July 29, 1757, in The

George Washington Papers at the Library of Congress, 1741–1799, available at

http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit(gw020074)) (last


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of training people to obey rules by using punishment to correctdisobedience.136 It is both “[t]he practice of training people to obey rules ora code of behavior, using punishment to correct disobedience” as well as

“[t]he controlled behavior resulting from such training.”137

While obedience to orders in the military can be and is often achieved

by non-coercive means,138 discipline is considered “the ingredient thatenables the commander to discharge all these responsibilities.”139 While thisrequirement for a disciplinary system which uses punishment—that is, arequirement for the ability to discipline—is often stated or assumed, theappropriate link to context is just as often overlooked: violence, themanaged application of which is the raison d’etre of today’s military as wellas yesterday’s, that demands discipline.140 Both causing and experiencingdeath and destruction constitute the context of many, if not most, militaryoperations, and influence military forces’ structure, training, and codes ofconduct.

Strict discipline141

through punishment has historically been needed toovercome fear of death and injury in the dangerous pursuit that is theprofession of arms.142 The sheer terror of battle, as well as battlefield

visited Jan. 5, 2016).136 See Elizabeth T. Gerschoff, More Harm than Good: A Summary of Scientific Research on the

Intended and Unintended Effects of Corporal Punishment on Children , 73 LAW & CONTEMP. PROBS.

31, 40 (2010) (defining the goal of punishment as “to put an end to inappropriate or

undesirable behavior and to promote positive and acceptable behavior in both the short and

long terms”); What is Discipline , PSYCHOL. DICTIONARY , http://psychologydictionary.org/

discipline/ (last visited Jan. 5, 2016) (defining discipline as the “control of conduct by using

punishment and reward”). 137

Discipline Definition , OXFORD DICTIONARIES , http://www.oxforddictionaries.com/us/definition/english/discipline (last visited Jan. 5, 2016).

138 See Franklin D. Rosenblatt, Non-Deployable: The Court-Martial System in Combat from

2001 – 2009 , 2010 ARMY LAW. 12, 12 (2010) (chronicling deployed U.S. military commanders

successfully ordering their subordinates into dangerous combat situations without the

concomitant legal authority to initiate court-martial proceedings against them).139 Merlin H. Starting, The Role of the Commander, 61 A.B.A. J. 305, 305 (1975).140 See generally AMERICAN MILITARY HISTORY VOL. I, THE UNITED STATES ARMY AND THE

FORGING OF A NATION , 1775-1917, supra note 127 , at 16 (describing the Army as “an instrument

of force”). 141 See COMM. ON THE UNIF. CODE OF MILITARY JUSTICE , GOOD ORDER , AND DISCIPLINE IN

THE ARMY , REPORT TO THE HONORABLE WILBER M. BRUCKER , SECRETARY OF THE ARMY 11

(1960) (defining discipline as a “state of mind which leads to a willingness to obey an order no

matter how unpleasant or dangerous the task to be performed”).

142 See generally Charles N. Pede, Soldiers in Combat and Military Justice , in U.S. MILITARY

OPERATIONS: LAW , POLICY , AND PRACTICE 437, 443 (Geoffrey S. Corn et al. eds., 2015) (“[T]he

ability to address indiscipline and criminal misconduct is one of the vital lifebloods of the


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boredom, have been exacerbated throughout history because most of themen have not been fighting voluntarily; men have been forced to fightsince antiquity, a history of conscription that continued in this country

until relatively recently.143

In addition to the need to force men toinvoluntarily expose themselves to mortal danger, discipline144 has beenrequired because violence by nature is difficult to control.

[A]rmies have struggled to balance fanning the violence held inthe hands of youthful warriors to destroy the enemy with theever-present danger that this same violence, if not properlycontained, could spill over in myriad ways to the loss of innocentlife and property.145

A recognition that violence breeds violence, thus requiring a specialtype of disciplinary control within militaries, is no less true today than itwas for Hannibal, Frederick the Great, or George Washington, despite thevoluntary nature of the U.S. armed forces. “Crime is part of the American

social and military fabric,” and the nature of the modern battlefieldexacerbates the need for discipline, instead of reducing it.146 While Twenty-First Century warfare differs in many ways from its predecessors, it is stillgoverned by the same principles and the need for discipline is just asgreat.147 In fact, such needs may be greater than ever: “[b]asic discipline isrequired not only to ensure a disciplined force is ready to carry out orders, but to preserve our allies and host-nation support as we wage war.”148

This brief discussion uses broad brushstrokes to paint a picture that isactually quite complex, one worthy of the libraries of volumes and miles offilm dedicated to the reality of war and warfare. This Article only paints atiny snapshot of such complexity; it does so to highlight that theuniqueness of warfare and its ancient influence on the forces engaged in it

must be understood in order for observers to make informed judgmentsregarding the exercise of prosecutorial discretion by military commanders.In summation, U.S. military commanders and those they command

military. Without the systems of punishment and rewards, discipline erodes.”). 143 See generally AMERICAN MILITARY HISTORY VOL. I, supra note 127, at 21–25 (tracing the

evolution of western armies).144 Here, discipline is utilized in the sense of the “control of conduct by using punishment

and reward.” See Discipline, supra note 137. 145 Pede, supra note 142, at 438.146 Id. at 438, 439 (noting how “unseen enemies, nonlinear battlefields, and . . . terror

tactics” make maintaining discipline more difficult in modern warfare).147 Id. at 439 (“Although commanders today do not have the same concerns about desertion

that George Washington labored under, the need to enforce basic discipline remains just aselemental to a field commander today, and is at the core of mission accomplishment.”).

148 Id.


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function within an insular sociological and hierarchical organizationalcontext, one that demands obedience and subordination of self to the unit.This organizational design is not arbitrary; it results from millennia of

experience regarding what type of organizational structure best achievesresults on the battlefield.

Commanders are expected to guide those under their command inachievement of frequently violent military objectives by directing conductthat may risk the very lives of those individuals whom they are so leading.The key to successfully getting both one solider as well as hundreds of menand women to risk their lives for their country is an organizationalstructure. This framework is cemented together by leadership skills andreinforced by the commanders’ ability to impose punishment. The latter isimposed through a disciplinary system that provides the means withwhich to react to, and hence guide, behavior. This Article now turns to thissystem.

B. How Is Discipline Maintained in Today’s Military?

This unity of command principle is implemented in the modern U.S.military through the military’s hierarchical organization, one whose clearlyestablished chain of command lies “at the heart of the military ethic.”149 The “hierarchy of ranks ‘determines a functional task by itself, themaintenance of good order among subordinates in his presence being aresponsibility of every superior.’”150 This organizational structure’s“lifeblood” is the military justice system.151 At the apex of this system ofpunishment stands the Uniform Code of Military Justice (“UCMJ”), themilitary’s penal code.152 It was enacted by Congress in 1950 under itsconstitutional power to regulate the armed forces,153 and in 1951 replaced

the Articles of War, which, though frequently revised, had been governingthe armed forces since 1775.154

149 GEOFFREY S. CORN ET AL., THE LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH

468 (2012).150 Note, Lessons in Transcendence: Forced Associations and the Military , 117 HARV. L. REV.

1981, 1993 (2004) (quoting NICO KEIJZER , MILITARY OBEDIENCE 42 (1978)).151 Pede, supra note 142, at 443 (“The military justice system is an essential element of a

deployed army . . . . The ability to address indiscipline and criminal misconduct is one of the

vital lifebloods of the military.”).152 See generally 10 U.S.C. §§ 801–940 (2012).

153 See U.S. CONST. art. I, § 8, cl. 14.154 See generally LURIE , supra note 6, at xiii, 3–20 (aptly chronicling the early history of the

American military justice system).


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The preamble to the Manual for Courts-Martial (“MCM”),155 an executive branch compilation that includes the UCMJ and supplements it withimplementing regulations and discussion, outlines that: “[t]he purpose of

military law is to promote justice, to assist in maintaining good order anddiscipline in the armed forces, to promote efficiency and effectiveness inthe military establishment, and thereby to strengthen the national securityof the United States.”156

In order to promote such goals, the military justice system placescommanders in the leading role: military commanders control disciplinewithin the military because they are gi

vanlandingham: discipline, justice, and command in the u.s. military

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