In the early 2010s, several reviews noted that the largest gap in our understanding of court case processing and sentencing concerned prosecutorial discretion (e.g., Baumer, Citation2013; Bushway & Forst, Citation2013; Ulmer, Citation2012). This recognition was far from novel—criminal justice scholars have decried this gap and called for research to fill it since at least the 1970s. Prosecutors in many ways are the fulcrum of the criminal justice system. Their discretion extends over investigations, initial or indictment/information charges, conviction/acquittal outcomes, the guilty plea process (e.g., pleas to charge reductions, fact bargaining, sentence recommendations, or all of these). Many have noted that the biggest obstacle in researching prosecutorial discretion has not been recognition of its vital importance or willingness to study it, but availability of data. Prosecutorial discretion is far less visible than judicial discretion, and leaves fewer (or sometimes no) organizational records or paper trails.
Fortunately, this is starting to change. The articles in this special issue all present key new empirical and theoretical contributions to our understanding of prosecutorial discretion in federal and state court systems across a variety of domains. The seven articles investigate disparities related to charge reductions connected to guilty pleas, plea rewards and trial penalties, selection processes in screening and charging decisions, and between-prosecutor variation in plea bargaining. Three articles focus on prosecutors in the federal courts—a quintessentially prosecutor-centered case processing system (Stith, Citation2008). Two articles by Brian Johnson and Richard Hartley, respectively, examine charge bargaining in federal court, and Hartley also investigates decisions to decline to prosecute. Mona Lynch then examines systemic inequalities in the selective federal prosecution of drug trafficking offenses.
Four articles examine prosecution in state courts. Don Stemen and Gipsy Escobar analyze between-prosecutor variation in plea bargaining in Wisconsin, and Nick Peterson, Marisa Omori, and Rachel Lautenschlager focus on urban neighborhood disorder case selection and disparities. Shi Yan and Shawn Bushway then propose and test a novel way to conceptualize and analyze offense specific local court plea reward and trial penalty norms, related to the concept of “going rates.” Suzanne St. George and Cassia Spohn contribute to our understanding of the consequences of rape myths, and the extent to which they still shape contemporary prosecutorial discretion in rapes and sexual assaults.
Together, the contributions in this special issue represent real progress in finally moving the agenda forward in understanding prosecutorial discretion and its influence as gatekeeper of the criminal justice system, benefitting some and disadvantaging others. These studies also make a substantial collective advance in the field’s knowledge of how prosecutorial decisions shape exposure to punishment as well its severity and differential impacts.
The Pennsylvania State University
References
- Baumer, E. P. (2013). Reassessing and redirecting research on race and sentencing. Justice Quarterly, 30(2), 231–261. doi:10.1080/07418825.2012.682602
- Bushway, S., & Forst, B. (2013). Studying discretion in the processes that generate criminal justice sanctions. Justice Quarterly, 30(2), 199–222. doi:10.1080/07418825.2012.682604
- Stith, K. (2008). The arc of the pendulum: Judges, prosecutors, and the exercise of discretion. The Yale Law Journal, 117(7), 1420–1497. doi:10.2307/20454685
- Ulmer, J. T. (2012). Recent developments and new directions in sentencing research. Justice Quarterly, 29(1), 1–40. doi:10.1080/07418825.2011.624115