Projects: Anatomy of Discretion Project

This two-year research project, funded by the National Institute of Justice, seeks to identify and gauge the influence of legal, quasi-legal, and extra-legal factors on the decisions that criminal prosecutors make over the lifetime of a case. Measuring the impact of these decisions on case outcomes is expected to yield practical guidelines for system decision makers committed to the principled use of prosecutorial discretion.

Project researchers are using surveys of prosecutors, standardized, hypothetical case vignettes, administrative data from actual cases, and a series of interviews and focus groups to understand the factors that influence five critical decisions prosecutors make in the processing of criminal cases: whether to accept or reject a case at initial screening; what charges to file; whether to dismiss or amend charges after filing; what charges to specify in formal plea offers; and sentence recommendations.

For each decision, the analysis will examine the influence of

  • defendant characteristics and circumstances 
  • victim characteristics and circumstances
  • the relationships between victims and offenders
  • case characteristics (offense type, offense seriousness, and strength of the evidence)
  • prosecutor characteristics
  • characteristics of the prosecuting office, and 
  • community context

Researchers will pay special attention to whether prosecutors use and are influenced by different factors at different decision-making stages and whether they weigh factors differently depending on the decision being made. The findings will provide a factual basis for considering ways to promote the principled use of prosecutorial discretion. To that end, Vera plans to develop a series of reports, podcasts, and presentations by project staff. The study is scheduled to be completed in late 2011. 

Why Study Prosecutorial Decision Making?

In the American criminal justice system, prosecuting attorneys arguably enjoy broader freedom to make significant decisions than any other system actor. Although prior research has identified a number of legal and extra-legal factors that affect the decisions prosecutors make, some potentially important factors have not been thoroughly studied. Also, most of the existing research has focused on identifying the factors that affect decisions, not on how and when prosecutors weigh these factors.

This project was supported by Award No. 2009-IJ-CX-0040 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this web page are those of the author(s) and do not necessarily reflect those of the Department of Justice.


The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making
Prosecuting attorneys enjoy exceptionally broad discretion in making decisions that influence criminal case outcomes. They make pivotal decisions throughout the life of a case with little public or judicial scrutiny. With support from the National Institute of Justice, the Vera Institute of Justice...
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By Bruce Frederick, senior research associate, Center on Sentencing and Corrections   Prosecutors enjoy broad discretion in making decisions that influence criminal case outcomes. They make pivotal decisions throughout the life of a case, from...