Prosecutorial Discretion Revisited: Charging

When a draft amicus brief in Yates v. United States arrived in my mail last semester, I thought it must have been April Fool’s Day and I actually checked the calendar. Here was a case in which a United States Attorney had charged a fisherman under 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation.” Surely this statute had been intended to reach destruction of evidence in white collar criminal prosecutions.  Yet Mr. Yates had thrown overboard a batch of fish that had been caught illegally because they were undersized.  He released a bunch of fish.  Yates was convicted and sentenced to thirty days in jail. The conviction was affirmed.  Sadly, I discovered, this was not a joke.

The case made its way to the Supreme Court, where certiorari was granted, and where the case was argued last week. The Justices, apparently, and appropriately, did not find the whole thing funny. Here is a link to a summary of the oral argument.

Two comparative points worth making.

First, as Justice Scalia observed, we do not have any meaningful federal guidelines that limit a prosecutor’s discretion in charging, beyond the broad requirements of due process of law. And, as the government pointed out at the oral argument, the United States Attorneys’ Manual, which might otherwise provide some restraint, only advises the prosecutors to bring the most serious charge that can be proven on the facts. Other jurisdictions, like the United Kingdom, for example, have legislatively enacted guidelines and substantial internal rules and guidelines that address a prosecutor’s charging discretion.

Second, this is the second time in recent memory that the Court has been forced to grapple with what appears to be prosecutorial overreaching in charging. Again, as Justice Scalia pointed out in frustration at the Yates argument, last term in Bond v. United States, the Court reversed a conviction brought under a law intended to prevent the spread of chemical weapons. In that case, a woman was charged under that law for using some sort of chemical to try to poison her husband’s lover.

To be sure, two cases does not an avalanche make. And many of us have had the experience of watching an appellate court excoriate the government or prosecution at oral argument only to have the court ultimately affirm the conviction. But it will be interesting to see if the Supreme Court takes the opportunity to both send a message about the limits of prosecutorial discretion and to articulate a need for express standards governing the decision to charge that do more than remind prosecutors to bring the highest charge possible.   One hopes the Court will continue to grant certiorari to review the charging function.