Reflections on the Exercise of Prosecutorial Discretion 50 Years After Publication of The Challenge of Crime in a Free Society

In The Challenge of Crime in a Free Society, the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 acknowledged the influential role that prosecutors play but lamented the fact that their highly discretionary charging and plea bargaining decisions were often made haphazardly and inconsistently. The Commission called for more transparency and accountability in charging and plea bargaining processes. I examine the exercise of prosecutorial discretion in the 50 years since the publication of the Commission's report, with a focus on the results of research and changes in policy and practice. Although the charging and plea bargaining processes have not been subject to the type of scholarly scrutiny directed at judges’ sentencing decisions, the research that has been published in the past several decades has become more theoretically grounded, methodologically sophisticated, and transdisciplinary. In terms of policy, decisions handed down by the Supreme Court since the 1960s have provided some minimal regulation of charging and plea bargaining, and the reforms embraced by state and federal prosecutors have affected the exercise of prosecutorial discretion.