Unfettered Discretion

1.  Prosecutors often possess unfettered discretion in making charging decisions.  The prosecutor’s essential duty is to ensure that charging decisions are based upon the existence of probable cause.  However, some would expand the prosecutor’s duty to matters surrounding social justice.  In fact, K. Babe Howell suggests that prosecutors have a duty to seek justice and to decline prosecution when prosecuting would result in social inequities.  Present an argument in favor of and against Howell’s position.  Make sure to include case reference(s) to explain your position. 

2.  Defendant “A” is arrested for possession 14 grams of oxycodone.  Law enforcement met with a confidential informant, of whom was attempting to work with law enforcement to reduce their own sentence.  The informant notified law enforcement that they could set up a controlled buy and procure a trafficking amount of oxycodone.  The informant knew that “A” possessed a large quantity of the drug.  Although “A” did not regularly sell, “A” was in desperate financial need and would likely cooperate.  “A” has no criminal history, but became addicted to oxycodone after being prescribed the drug to regulate severe back pain.  “A” routinely procured the drug through illicit means, but maintained possession for personal use.  Because “A” regularly procures the drug through illicit means, “A” has personal knowledge of the suppliers, and could identify them.  However, “A” is unlikely to cooperate with law enforcement because he is fearful of retaliation. Law enforcement agreed to the controlled buy, and ultimately “A” agreed to sell the narcotics to the informant.  After the buy is complete, “A” is taken into custody.  “A” is arrested for trafficking, and is subject to a mandatory minimum sentence.

You are a career prosecutor.  Your community has significant drug-related problems and associated high-crime activity.  The State Attorney has made it clear that drug-related offenses must be prosecuted, and that all attempts should be made to identify and target major suppliers.  You find out, during your investigation, that the informant is not reliable, and you question whether the informant should have been used by law enforcement. You know that you do not need to use the informant as a witness, but you are concerned nonetheless.